Evans v. Sandy City , 928 F.3d 1171 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 5, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
STEVE RAY EVANS,
Plaintiff - Appellant,
v. No. 17-4179
SANDY CITY, a municipal corporation;
TIM DOLAN, Mayor of Sandy City;
KEVIN THACKER, Sandy City Police
Chief; ROBERT WALL, Sandy City
Attorney; DOUGLAS JOHNSON, Sandy
City Prosecutor; R. MACKAY HANKS,
Sandy City Prosecutor; SCOTT
COWDELL, Sandy City Council Member;
MAREN BARKER, Sandy City Council
Member; KRISTIN COLEMAN-
NICHOLL, Sandy City Council Member;
CHRIS MCCANDLESS, Sandy City
Council Member; STEVE FAIRBANKS,
Sandy City Council Member; LINDA
MARTINEZ SAVILLE, Sandy City
Council Member; STEPHEN P. SMITH,
Sandy City Council Member; C. TYSON,
Sandy City Police Department; C.
PINGREE, Sandy City Police Department;
J.E. BURNS, Sandy City Police
Department; JOHN DOE I-XX, Sandy City
Police Department,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:17-CV-00408-BSJ)
_________________________________
Angela H. Elmore, Utah Legal Clinic Foundation (John Robinson, Jr., The Law Office of
John Robinson, Jr., with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellant.
Troy L. Booher, Zimmerman Booher (Freyja R. Johnson, Zimmerman Booher; Michael D.
Black, Parr Brown Gee & Loveless; David C. Reymann, Parr Brown Gee & Loveless, with
him on the brief), Salt Lake City, Utah, for Defendants-Appellees.
_________________________________
Before BRISCOE, BALDOCK, and EID, Circuit Judges.
_________________________________
BALDOCK, Circuit Judge.
_________________________________
In 2016, the Sandy City, Utah city council adopted an ordinance making it illegal
for any person “to sit or stand, in or on any unpaved median, or any median of less
than 36 inches for any period of time.” Sandy City Traffic Code, Article 16, Section
299.1 (the Ordinance). After the Sandy City council adopted the Ordinance, Plaintiff-
Appellant Steve Ray Evans received four citations for violating the Ordinance when
he stood on narrow or unpaved medians. Evans filed suit against the City and many of
its officials under 42 U.S.C. § 1983 in the district court of Utah, alleging the Ordinance
is facially invalid because it violates the First Amendment right to free speech. Evans
also asked the district court to grant his request for a preliminary injunction. The City
filed a motion for summary judgment and the court allowed discovery. After a hearing
on the motion, the district court denied Evans’ preliminary injunction and granted
summary judgment in favor of the City because the Ordinance was a valid time, place,
or manner restriction on speech.1 Evans appealed, arguing the district court incorrectly
1
Mr. Evans also alleged the Ordinance violated the Eighth Amendment, the
Fourteenth Amendment Equal Protection Clause, the Dormant Commerce Clause, and
2
applied the time, place, or manner standard and wrongly granted summary judgment
because the City did not satisfy its evidentiary burden. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I.
We review a district court’s summary judgment ruling de novo, applying the
same standard as the district court. iMatter Utah v. Njord, 774 F.3d 1258, 1262 (10th
Cir. 2014). Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment,
“we review the facts and all reasonable inferences those facts support, in the light most
favorable to the nonmoving party.” iMatter, 774 F.3d at 1262 (citation omitted).
Because this decision implicates First Amendment freedoms, we perform an
independent examination of the whole record in order to ensure that the judgment
protects the right of free expression. Faustin v. City and Cty. of Denver, 423 F.3d
1192, 1196 (10th Cir. 2005). Here, the City carries the burden to justify the Ordinance
with uncontested facts. See iMatter, 774 F.3d at 1263.
II.
Today, we confront whether the Ordinance, which prohibits the sitting or
standing on medians that are unpaved or less than 36 inches wide (hereinafter “affected
Title VII of the Civil Rights Act. The district court dismissed each of Evans’ claims
with prejudice and granted summary judgment in favor of the City. Mr. Evans does
not appeal any of those claims.
3
medians”), violates the First Amendment. The First Amendment, applicable to the
States through the Fourteenth Amendment, prohibits the enactment of laws “abridging
the freedom of speech.” U.S. Const. amend. I. The First Amendment “applies not only
to legislative enactments, but also to less formal governmental acts, including city
policies,” such as the Ordinance at issue. Hawkins v. City and Cty. of Denver, 170
F.3d 1281, 1286 (10th Cir. 1999).
A.
As a threshold matter, we must first consider whether the activity in question
constitutes protected speech under the First Amendment. See Cornelius v. NAACP
Legal Def. & Educ. Fund., Inc., 473 U.S. 788, 797 (1985) (“[I]f [the speech] is not
[protected], we need go no further.”). Here, Evans contends the Ordinance restricts
his ability to panhandle and solicit financial support. According to the Supreme Court,
“the solicitation of charitable contributions is protected speech.” Riley v. Nat’l Fed’n
of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988). Neither the Supreme Court nor
this Circuit has directly addressed whether panhandling is protected speech under the
First Amendment but several of our sister circuits who reached the question determined
panhandling is protected. See Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir.
2015); Speet v. Schuette, 726 F.3d 867, 870 (6th Cir. 2013); Smith v. City of Fort
Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999); Loper v. N.Y.C. Police Dep’t, 999
F.2d 699, 704 (2d Cir. 1993). Assuming without deciding panhandling is protected
under the First Amendment, as we will explain later, the Ordinance is a valid time,
place, or manner restriction. See Gresham v. Peterson, 225 F.3d 899, 904−05 (7th Cir.
4
2000) (after “assuming . . . some panhandler speech would be protected by the First
Amendment,” the Seventh Circuit applied the First Amendment “time, place, and
manner” framework.).
We note that while solicitation and panhandling laws are on the books in cities
across the United States and challenges to such laws have been similarly widespread,
an astute reader will recognize the Ordinance challenged here is not a ban on
panhandling or solicitation like many other ordinances. Instead, the Ordinance is a
restriction on sitting or standing on narrow and unpaved medians. This distinction will
become important later, but for now we assume Evans’ form of speech, panhandling,
is protected speech.
B.
We turn next to the nature of the forum affected by the Ordinance. Under First
Amendment jurisprudence, “the extent to which the Government can control access [to
Government property] depends on the nature of the relevant forum.” Cornelius, 473
U.S. at 800. The Supreme Court has identified three categories of Government
property subject to First Amendment analysis: (1) traditional public fora;
(2) designated public fora; and (3) nonpublic fora. See Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 45−46 (1983). A traditional public forum is a
place that “by long tradition or by government fiat ha[s] been devoted to assembly and
debate.” Id. at 45. “Because a principal purpose of traditional public fora is the free
exchange of ideas, speakers can be excluded from a public forum only when the
exclusion is necessary to serve a compelling state interest and the exclusion is narrowly
5
drawn to achieve that interest.” Cornelius, 473 U.S. at 800 (citing Perry, 460 U.S. at
45). In contrast, designated public fora are places that are not generally open to the
public for First Amendment activity and “are created by purposeful governmental
action” to allow speech activity. Arkansas Educ. Television Com’n v. Forbes, 523 U.S.
666, 677 (1998). A nonpublic forum is anything that does not qualify as a traditional
or designated public forum. Access to a nonpublic forum “can be restricted as long as
the restrictions are ‘reasonable and [are] not an effort to suppress expression merely
because public officials oppose the speaker’s view.’” Cornelius, 473 U.S. at 800
(quoting Perry, 460 U.S. at 46) (alteration in original).
Evans contends “[m]edians are widely considered [traditional] public fora”
whereas the City contends the affected medians are nonpublic fora. The district court
did not decide the issue, concluding the forum designation was not dispositive since
the Ordinance was valid even under the stricter standard for traditional public fora.
We agree with the district court. As we will explain, the Ordinance is a valid time,
place, or manner regulation; thus, we need not decide if the affected medians are more
appropriately classified as nonpublic fora.2
2
Although courts have concluded medians that resemble parks are traditional
public fora, we have serious reservations extending such conclusions to the affected
medians in this case, some of which are 17-inch traffic dividers that have hardly been
“by long tradition . . . devoted to assembly and debate.” Perry, 460 U.S. at 45; see,
e.g., Warren v. Fairfax Cty., 196 F.3d 186, 189 (4th Cir. 1999) (“We hold that the
Center Island mall is a traditional public forum” because it is “best characterized as a
park or mall.”). Nevertheless, we assume without deciding the affected medians are
traditional public fora.
6
C.
Assuming without deciding the affected medians are traditional public fora, we
turn to whether the Ordinance is a valid restriction of protected speech. It is well-
settled “that even in a public forum the government may impose reasonable restrictions
on the time, place, and manner of protected speech, provided the restrictions ‘are
justified without reference to the content of the regulated speech, that they are narrowly
tailored to serve a significant governmental interest, and that they leave open ample
alternative channels for communication of information.’” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 293 (1984)). We address each of the three requirements in turn.
1. Content Neutrality
Recall, the Ordinance proscribes any person “to sit or stand, in or on any
unpaved median, or any median of less than 36 inches for any period of time.” Sandy
City Traffic Code, Article 16, Section 299.1. No one disputes the Ordinance is facially
content neutral because it “does not draw content-based distinctions on its face.”
McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014). The law applies evenhandedly to
all who sit or stand on narrow or unpaved medians irrespective of the content of their
message.
Even though the Ordinance is content-neutral on its face, the Ordinance may
nevertheless be content-based if the government adopted the Ordinance “because of
disagreement with the message it conveys.” Ward, 491 U.S. at 791. “The
government’s purpose is the controlling consideration. A regulation that serves
7
purposes unrelated to the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others.” Id. (emphasis added).
“Government regulation of expressive activity is content neutral so long as it is
‘justified without reference to the content of the regulated speech.’” Id. (quoting Cmty.
for Creative Non-Violence, 468 U.S. at 293).
The record indicates the City justified the Ordinance without reference to the
content of the regulated speech. Specifically, the City police captain explained during
a City council meeting that people sitting or standing on narrow or unpaved medians
are a public safety hazard. The police captain explained the Ordinance sought to limit
that danger because there had been “several close calls” where accidents involving
pedestrians and vehicles “could [have] be[en] devastating.” The City’s public safety
justification is further confirmed by the process the City prosecutor used to draft the
Ordinance. First, the City prosecutor received notice the police “were having some
problems with safety issues” with people falling into traffic. To deal with this problem,
the City prosecutor set out to draft the Ordinance. He gathered information by
surveying the City’s medians. Then, he drafted the Ordinance to exclusively target
medians where it was dangerous to sit or stand for any length of time, regardless of the
speech that might occur. In his judgment, paved medians less than 36-inches wide
were dangerous to sit or stand on because they were too narrow to provide refuge from
passing cars. He also concluded unpaved medians, which were typically covered in
rocks, boulders, and in some cases shrubs, were dangerous because pedestrians could
8
easily lose their footing or trip on uneven surfaces. At all times, the City has
maintained its sole justification for the Ordinance is to promote public safety.
In spite of this clear public safety purpose, Evans contends the Ordinance is not
content neutral because the City acted, in part, because it disagreed with panhandling.
Evans suggests the City’s public safety justification is a façade for its improper motive
to suppress panhandlers’ speech. In support, Evans points to one question and one
statement made by two councilmembers at the City council meeting where the police
captain presented the proposed Ordinance. One councilmember asked, “we’re going
to give homeless people citations?” No reasonable factfinder could conclude this
question provides evidence the City adopted the Ordinance “because of a disagreement
with the content” of panhandlers’ speech. At most, the question reveals one
councilmember acknowledged the Ordinance would have an incidental effect on
panhandling. But it is well-settled such an incidental effect on some speakers or
messages does not make a regulation content-based. See Ward, 491 U.S. at 791 (“A
regulation that serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but not
others.”); see also City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 49 (1986)
(classifying a restriction on the location of adult movie theaters as content neutral
because the ordinance was aimed not at the content of the films shown, but rather at
the secondary effects of such theaters on the surrounding community); McCullen, 134
S. Ct. at 2531 (classifying an ordinance that exclusively restricted speech at abortion
clinics as content neutral because the ordinance was aimed at public safety, even
9
though it had an incidental effect on abortion-related speech). Therefore, this question
most certainly does not turn the Ordinance into a content-based restriction.
Additionally, Evans contends a councilmember’s statement, “And I don’t even
know who stops there to give them anything in the middle of traffic as it’s going,”
shows the City adopted the Ordinance because it disagreed with panhandling. Like the
councilmember’s question, no reasonable factfinder could conclude the statement
provides evidence the City adopted the Ordinance because of a disagreement with the
content of panhandler’s speech. This is especially true when the statement is read in
context. The councilmember’s entire statement and the City police captain’s response
indicates the councilmember endorsed the Ordinance to promote public safety:
I drove 106th the other day at about noon and there were four people
standing on [a] median and they were talking, you know, this group of
guys were just talking there and, boy, if one of them would have stepped
backwards a foot—‘cause they were on [a median] narrower than three
feet—[Police Captain: “Correct”]—they would’ve been just wiped out—
[Police Captain: “I believe it is approximately 16 inches”]—Really it was
scarey [sic] for me and it’s for their own safety, you know. And I don’t
even know who stops there to give them anything in the middle of traffic
as it’s going.
This statement supports the City’s public safety justification for passing the Ordinance.
Conspicuously, the statement says nothing about the content of panhandlers’ speech,
let alone provides evidence the City passed the Ordinance because it disagreed with
their message. Accordingly, the Ordinance is content neutral.3
3
Evans also argues we should consider City councilmembers’ post-enactment
comments as evidence relevant to their motivations for passing the Ordinance. Evans
cites no authority to support the use of such comments as bearing on legislative
purpose.
10
2. Narrowly Tailored to Serve a Significant Government Interest
“Even though the [Ordinance] is content neutral, it still must be ‘narrowly
tailored to serve a significant governmental interest.’” McCullen, 134 S. Ct. at 2534
(quoting Ward, 491 U.S. at 796). No one disputes the Ordinance serves a significant
governmental interest in promoting public safety. In fact, even Evans acknowledges
“[t]here’s no real dispute about whether keeping cars and pedestrians away from each
other would, at least in some way, make Sandy City a safer place.” Op. Br. at 25 (citing
Int’l Soc’y for Krishna Consciousness v. City of Baton Rouge, 668 F. Supp. 527, 530
(M.D. La. 1987) (“It requires neither towering intellect nor an expensive ‘expert’ study
to conclude that mixing pedestrians and temporarily stopped motor vehicles in the
same space at the same time is dangerous.”)). With both parties in agreement, we need
not belabor the point: the Ordinance promotes public safety in a direct and effective
way by keeping pedestrians off thin slices of pavement and unpaved traffic dividers
where pedestrians could be injured by passing traffic.
We turn, instead, to the hotly contested question: whether the Ordinance is
narrowly tailored to serve that interest. To be narrowly tailored, the Ordinance must
not “burden substantially more speech than is necessary to further the government’s
legitimate interests.” Ward, 491 U.S. at 799. In other words, the government “may
not regulate expression in such a manner that a substantial portion of the burden on
speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (quoting
Ward, 491 U.S. at 799). This requirement demands a “close fit between ends and
means” to ensure speech is not sacrificed for efficiency. Id. at 2534. We look “to the
11
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.” Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536
U.S. 150, 165 (2002).
At the same time, such regulation “need not be the least restrictive or least
intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied
‘so long as the . . . regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation.’” Ward, 491 U.S. at 798−99 (quoting
United States v. Albertini, 472 U.S. 675, 689 (1985)). “So long as the means chosen
are not substantially broader than necessary to achieve the government’s
interest, . . . the regulation will not be invalid simply because a court concludes that
the government’s interest could be adequately served by some less-speech-restrictive
alternative.” Id. at 800. “‘The validity of [time, place, or manner] regulations does
not turn on a judge’s agreement with the responsible decisionmaker concerning the
most appropriate method for promoting significant government interests’ or the degree
to which those interest should be promoted.” Id. at 800 (quoting Albertini, 472 U.S. at
689).
Here, the City adopted the Ordinance to promote “public health, safety and [the]
welfare of the City” after there had been several “close calls” where individuals
reported pedestrians on medians in dangerous situations. Evans nevertheless contends
the Ordinance is not narrowly tailored. To this end, Evans makes three main
arguments. We address each in turn.
12
a.
First, relying on McCullen, Evans claims the Ordinance places a substantial
burden on speech because it requires him to sit or stand a substantial distance away
from the most effective places to communicate with his target audience. In McCullen,
the Supreme Court determined an ordinance requiring a buffer zone around abortion
clinics imposed a substantial burden on speech and “effectively stifled petitioners’
message” because the ordinance prevented petitioners from engaging in close, personal
conversations with their target audience of women entering the clinics. McCullen, 134
S. Ct. at 2536−37. Similarly, Evans claims standing on medians where he can talk to
drivers in vehicles is the most effective way to communicate with his target audience
and the Ordinance prevents him from doing so.
We are not persuaded. Evans received two citations for standing on a paved 17-
inch median. A mere ten feet away from where he was cited, the median is wider than
36 inches and is therefore unaffected by the Ordinance. We simply cannot accept this
ten-foot difference on the same median as a substantial burden on speech. In
compliance with the Ordinance, Evans can stand on wide, paved medians to
communicate effectively with his target audience. Unlike McCullen, the Ordinance
does not effectively stifle Evans’ ability to communicate his message to his target
audience.
b.
Second, Evans contends the City failed to show it properly balanced speech
against safety. To ensure a regulation does not burden substantially more speech than
13
necessary to further the government’s interests, narrow tailoring requires “a close fit
between ends and means” to ensure speech is not sacrificed for efficiency. McCullen,
134 S. Ct. at 2534−35 (citing Nat’l Fed’n of the Blind, 487 U.S. at 795). Fit matters,
but narrow tailoring “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.” Cutting v. City of Portland, 802 F.3d
79, 86 (1st Cir. 2015).
Evans contends the City did not meet its burden to justify the fit between the
ends and the means when it failed to “compile any data, statistics, or accident reports.”
According to Evans, “[u]nder McCullen, Sandy City’s failure to conduct research and
analysis is dispositive. . . . Indeed, that’s the grit of McCullen: governments must
provide real evidence to justify their public safety concerns.” In McCullen, the
Supreme Court explained evidence of a problem at one abortion clinic at one time did
not justify the burden on other clinics at other times. Specifically, the Supreme Court
stated, “Respondents point us to no evidence that individuals regularly gather at other
clinics, or at other times in Boston, in sufficiently large groups to obstruct access. For
a problem shown to arise only once a week in one city at one clinic, creating 35-foot
buffer zones at every clinic across the Commonwealth [of Massachusetts] is hardly a
narrowly tailored solution.” McCullen, 134 S. Ct. at 2539. The Supreme Court’s
language does not create a new evidentiary requirement for governments to compile
data or statistics. Instead, governments bear the same burden to show a regulation does
14
not “burden substantially more speech than is necessary to further the government’s
legitimate interests.” Id. at 2535 (quoting Ward, 491 U.S. at 799).
Here, a direct relationship exists between the City’s goal of promoting public
safety and the restriction on speech it selected. The Ordinance is limited only to those
medians where it is unsafe to sit or stand. The City police captain—a City official who
had years of experience dealing with unsafe situations involving pedestrians on
medians in Sandy City—conducted a survey of the medians in Sandy City. The City
prosecutor also surveyed the medians within the City. Based on what they observed,
the City drafted the Ordinance limiting it only to those medians where it would be
dangerous to sit or stand at any time of day, at any traffic speed or volume. The City
prosecutor explained he included unpaved medians where the “footing isn’t uniform,”
which posed a tripping hazard. He included narrow medians after walking on them
and determining what width would provide sufficient refuge from passing traffic. Such
evidence is sufficient to satisfy the City’s burden to show the Ordinance does not
“burden substantially more speech than is necessary to further the government’s
legitimate interests.” Id. (quoting Ward, 491 U.S. at 799). The Ordinance only
prohibits sitting or standing on narrow or unpaved medians where it would be
dangerous to do so. This is the sort of close fit the narrow tailoring requires.
Evans also contends the City failed to satisfy its evidentiary burden because it
did not provide accident reports or complaints regarding medians in all parts of the
City. Evans would have this Court require the City to restrict speech in a piece-meal
fashion, median by median, only upholding an ordinance after there is a report of a
15
“close call” on a particular median, or worse, someone gets injured. The First
Amendment “prevents the government from too readily ‘sacrific[ing] speech for
efficiency.”’ Id. at 2534−35 (quoting Nat’l Fed’n of the Blind, 487 U.S. at 795). It
does not require the government to wait for accidents to justify safety regulations. See
Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, 775 F.3d 969,
975 (8th Cir. 2014) (“The fact that a pedestrian had not yet been hit while distributing
materials in the city did not mean that it was not dangerous, for a government need not
wait for accidents to justify safety regulations.”) (quotations omitted).
c.
Third, Evans argues the Ordinance is not narrowly tailored because the City did
not demonstrate alternative measures that burden substantially less speech would fail
to promote public safety. According to Evans, since the City did not “prove that it
actually tried other methods to address the problem,” such as alternatives that
distinguish between high and low traffic areas, traffic volume or time of day, we should
strike down the Ordinance as not narrowly tailored. Op. Br. at 31. (quoting Reynolds,
779 F.3d at 231 (emphasis in original)).
“[A] regulation of the time, place, or manner of protected speech must be
narrowly tailored to serve the government’s legitimate, content-neutral interests but
that it need not be the least restrictive or least intrusive means of doing so.” Ward, 491
U.S. at 798. “So long as the means chosen are not substantially broader than necessary
to achieve the government’s interest, . . . the regulation will not be invalid simply
because a court concludes that the government’s interest could be adequately served
16
by some less-speech-restrictive alternative.” Id. at 800 (emphasis added). In other
words, we do not even reach the question of whether “the government’s interest could
be adequately served by some less-speech-restrictive alternative” if the Ordinance is
not “substantially broader than necessary” to promote the City’s interest in public
safety. Id. McCullen does not change that. In McCullen, the Court determined the
means chosen were substantially broader than necessary to achieve the government’s
interest. Accordingly, the Court explained to be narrowly tailored, “the government
must demonstrate that alternative measures that burden substantially less speech would
fail to achieve the government’s interests, not simply that the chosen route is easier.”
McCullen, 134 S. Ct. at 2540. Though the Court in McCullen evaluated evidence
offered in support of respondents’ claim that they had attempted alternative measures,
nothing in McCullen indicates that the Court sought to modify Ward’s clear rule. See
id.
Here, the Ordinance is not substantially broader than necessary to promote
public safety. On both narrow and unpaved medians, the restriction on speech is
directly tailored to the danger. We will not invalidate the Ordinance “simply because
there is some imaginable alternative that might be less burdensome on speech.” Ward,
491 U.S. at 797 (quoting Albertini, 472 U.S. at 689). The City is not required to ignore
the danger posed by standing on a 17-inch sliver of concrete just because lighter traffic
may make it less likely one will be hit by a car. The Ordinance is narrowly tailored to
the public safety problem the City sought to address. Because the means fit closely
with the ends, First Amendment jurisprudence does not require the City to prove that
17
some imaginable alternative would fail to achieve the government’s interest in public
safety.
3. Ample Alternative Channels of Communication
Finally, a reasonable time, place, or manner restriction of protected speech must
“leave open ample alternative channels for communication of information.” Ward, 491
U.S. at 791. “While the First Amendment does not guarantee the right to employ every
conceivable method of communication at all times and in all places, a restriction on
expressive activity may be invalid if the remaining modes of communication are
inadequate.” City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984)
(citations omitted). To determine whether alternative channels are adequate, courts
assess in part the speaker’s ability to reach his or her target audience. Ward, 491 U.S.
at 802.
No one disputes the Ordinance leaves open many alternative channels for Evans
to communicate, including paved medians wider than 36 inches, every city sidewalk,
and every city park. Despite the available alternatives, Evans contends sidewalks and
parks are not adequate because he cannot reach his target audience—drivers in
vehicles—as effectively compared to medians.
Setting aside whether Evans can “effectively” communicate with his target
audience on sidewalks and in parks, the City argues roughly 7,000 linear feet of wide,
paved medians in the City remain unaffected by the Ordinance. Evans does not dispute
that. And critically, at no point does Evans distinguish his ability to communicate with
his target audience on affected or unaffected medians. Evans’ target audience is
18
indistinguishable on affected and unaffected medians. Recall, the City cited Evans
twice for standing on a narrow median. Only ten feet away from where the City cited
Evans, the paved median is wider than 36 inches and therefore unaffected by the
Ordinance. Given Evans “prefers to stand on medians” and he never argued wide,
paved medians were inadequate to effectively communicate with drivers in vehicle, the
7,000 linear feet of unaffected medians in the City provide Evans ample alternative
channels for communication with his target audience.
III.
The Ordinance—narrow in its purpose, design, and effect—does not
discriminate based on content, is narrowly drawn to serve an important governmental
interest, and permits Evans to express his views, including the solicitation of financial
support, on literally thousands of linear feet within Sandy City. The judgment of the
district court is AFFIRMED.
19
No. 17-4179, Evans v. Sandy City
BRISCOE, Circuit Judge, dissenting.
I respectfully dissent. In my view, Sandy City has not carried its burden to
establish that the Ordinance is narrowly tailored to serve a significant governmental
interest. Nor has Sandy City established that the affected medians are nonpublic fora. I
would reverse the district court’s grant of summary judgment to the City and remand for
further proceedings.
I
As the majority acknowledges, when a regulation is content neutral,1 “the
requirement of narrow tailoring is satisfied so long as the regulation promotes a
substantial government interest that would be achieved less effectively absent the
regulation, and does not burden substantially more speech than is necessary to further the
government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148
(10th Cir. 2001) (quotations and ellipsis omitted). Here, the City has failed to show that
1
I agree with the majority that the Ordinance is content neutral.
the Ordinance does not burden substantially more speech2 than is necessary to further the
City’s legitimate interest in public safety.3
A
To determine whether the Ordinance is narrowly tailored, we first look, as the
majority did, to the amount of speech it burdens. See Watchtower Bible & Tract Soc’y 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 [state] interests that the ordinance purports to
serve.”). Contrary to the majority’s view, I would conclude that the Ordinance places a
substantial burden on speech.
The Ordinance bans all speech on affected medians at all times. See Sandy City
Traffic Code, Article 16, Section 299.1. The Ordinance also applies to a substantial
2
The majority assumes that panhandling is protected speech, and I would
affirmatively conclude that it is. As the majority notes, the Supreme Court has stated that
“the solicitation of charitable contributions is protected speech.” Maj. Op. at 4 (quoting
Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 789 (1988)); see also Village of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632 (1980) (“[C]haritable
appeals for funds, on the street or door to door, involve a variety of speech interests—
communication of information, the dissemination and propagation of views and ideas,
and the advocacy of causes—that are within the protection of the First Amendment.”).
And every one of our sister circuits to reach the question has concluded that panhandling
is protected speech. See Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir. 2015); Speet
v. Schuette, 726 F.3d 867, 870 (6th Cir. 2013); Smith v. City of Fort Lauderdale, 177
F.3d 954, 956 (11th Cir. 1999); Loper v. N.Y.C. Police Dep’t, 999 F.2d 699, 704 (2d Cir.
1993); accord Comite de Jornaleros v. City of Redondo Beach, 657 F.3d 936, 945 (9th
Cir. 2014) (en banc) (holding that solicitation is protected speech).
3
I also agree with the majority that the City’s interest in public safety is legitimate
and substantial.
2
number of Sandy City’s medians. Although the record does not include the exact number
of affected medians, the record indicates that this number is significant, as it contains
“over 100 pages of photographs depicting nearly every different type” of affected
median. Aplt. Reply at 4; accord Aplee. App., Vol. II at 109–276. Because the
Ordinance prohibits all expressive activity at all times on many medians throughout
Sandy City, it “serious[ly] burdens . . . speech.” McCullen v. Coakley, 573 U.S. 464, 487
(2014).4
B
In conducting the narrowly tailored analysis, we must look to “the specific . . .
interest articulated by the City.” Citizens for Peace in Space v. City of Colo. Springs,
477 F.3d 1212, 1223 (10th Cir. 2007). “Indeed, to assess whether a restriction is an
appropriate ‘fit’ to some important government interest, it is necessary that the
government interest be specifically defined.” Id. Here, the City enacted the Ordinance
because it was “worried about people falling into traffic.” Aplt. App., Vol. II at 291.
When addressing the City Council in support of the Ordinance, Sandy City Police Chief
O’Neal described the safety danger as follows: “If someone trips and steps out into
4
The majority evaluates the Ordinance’s burden on speech only with reference to
whether the Ordinance renders Evans’s panhandling less effective. To be sure, much of
Evans’s argument regarding the Ordinance’s burden on speech focuses on the decreased
efficacy of his speech because he is prohibited from using many medians to panhandle.
But Evans’s narrow-tailoring argument also argues that the Ordinance applies to
numerous medians throughout the City. See Aplt. Br. at 32 (“Given that the City’s
evidence supported a conclusion that there were, at most, a few problem areas in Sandy,
the City needed to try using less restrictive tools before it implemented a city-wide
ban.”).
3
traffic, especially with the speed that traffic goes through [one specific] area, it could be
devastating.” Aplt. App., Vol. I at 177. The First Amendment analysis must therefore
examine the fit between the City’s stated interest, preventing people from falling off
medians into traffic, and the City’s chosen means, banning all sitting or standing on all
unpaved medians and all paved medians narrower than 36 inches.
C
After identifying the specific interest the City articulates, we must determine if the
Ordinance is narrowly tailored to serve that interest; that is, if the Ordinance “burden[s]
substantially more speech than is necessary to further the [City’s] legitimate interests.”
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). “[R]estrictions on the time,
place, or manner of protected speech are not invalid simply because there is some
imaginable alternative that might be less burdensome on speech.” Id. at 797. Rather,
“[t]he scope of the restriction on speech must be reasonably, though it need not be
perfectly, targeted to address the harm intended to be regulated.” 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484, 529 (1996) (O’Connor, J., concurring).
When deciding on the scope of the Ordinance, Sandy City Police Captain Justin
Chapman and Sandy City Prosecutor Doug Johnson visited medians in Sandy City to
determine which were “safe” and which were “unsafe.” See Aplt. App., Vol. II at 292–
93. The majority characterizes Chapman’s and Johnson’s process as a “survey of the
medians in Sandy City.” Maj. Op. at 15; accord id. at 8. I find that description generous,
to say the least.
4
Johnson concluded which medians were “safe” based on whether, while standing
on a median, he felt he was likely to be hit by a moving vehicle. Johnson made this
determination “anecdotally,” Aplt. App., Vol. II at 293, employing the following
methodology:
I would just stand on a median and go, “This is scary. I just almost got hit.”
And then I would walk somewhere where it was just a little bit wider and
go, “This is scary. I almost got hit.” And then I would walk somewhere
that was just a little bit wider, until finally I found a place where I said, “I
don’t think I could get hit there.” And . . . then I noted that place, went
back to the police department, asked them to go get measurements for
where I was standing, and went from there.
Id. Johnson conducted this experiment on one median in Sandy City.
Chapman visited “[a] lot” of medians throughout Sandy City and measured the
width of medians throughout “the main arteries [of Sandy City] that . . . had obvious
islands.” Id. at 357–58. Chapman “didn’t feel any of the islands regardless [of width]
were safe to be on.” Id. at 359. After visiting the medians, Chapman concluded that the
“not smooth,” “unpaved medians” had “landscaping that would cause a tripping hazard.”
Id. This conclusion was based on his
feeling, if you had a person that was walking, standing, whatever they’re
doing in the area where cars are whizzing by, if it’s unpaved, or uneven . . .
, you have the potential to trip on something like that . . . . That seemed it
could be a little bit more unsafe because whether or not you’re specifically
choosing a path one way or another, you simply catch your toe on a rock
and boom, you’re in the traffic.
Id. at 359–60.
In addition to relying on Johnson’s and Chapman’s opinions, the City justifies the
Ordinance by pointing to complaints that the Sandy City police received about people on
5
medians.5 The record contains twenty-nine documented complaints between October 7,
2014, and April 29, 2017, twenty-eight of which relate to people standing on Sandy City
medians.6 Most of the complaints arise from one small area of the city. Indeed, at least
twenty-two of the twenty-nine complaints relate to locations within half a mile of each
other, all of which are near on- and off-ramps for Interstate Highway 15. Based on
Johnson’s and Chapman’s surveys and the complaints regarding people in the median,
Sandy City enacted the Ordinance, which states in full:
It shall be illegal for any individual to sit or stand, in or on any unpaved
median, or any median of less than 36 inches for any period of time.
Sandy City Traffic Code, Article 16, Section 299.1.
I view this record as inadequate to support the City’s ban of all expressive
activities in numerous medians throughout the city. First, Johnson and Chapman
articulate no objective basis for their opinions. Rather, Johnson characterized his
determination of which medians were safe as being made “anecdotally,” Aplt. App., Vol.
II at 293, and Chapman relied on his “feeling” to determine which medians “seemed
5
Although the City cites complaints as evidence that the Ordinance was
necessary, the majority does not rely on the complaints at all, stating only that the First
Amendment “does not require the government to wait for accidents to justify safety
regulations.” Maj. Op. at 16. Be that as it may, the First Amendment does require the
government to “demonstrate that the recited harms,” here, the danger of people falling off
medians into traffic, “are real, not merely conjectural, and that the regulation will in fact
alleviate those harms in a direct and material way.” Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 664 (1994) (plurality opinion).
6
One complaint does not seem related to an individual standing on a median at all.
See Aplee. App., Vol. II at 303 (“[M]ale in traffic . . . on foot . . . in and out of traffic.”).
6
[they] could be a little bit more unsafe,” id. at 359–60.7 In the First Amendment context,
this is not enough. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 196 (1997) (“[I]n
the realm of First Amendment questions,” the legislature “must base its conclusions upon
substantial evidence.”); see also McCullen, 573 U.S. at 496 (“Given the vital First
Amendment interests at stake, it is not enough for [the City] simply to say” that the
Ordinance is necessary.).
Second, the complaints the City submitted do not indicate that the Ordinance is
tailored to address the City’s articulated interest in preventing people from falling off
medians into traffic. Even to the extent the complaints support a conclusion that sitting
or standing on medians is in fact dangerous,8 most of the complaints pertain to one small
part of the city. As the Supreme Court noted in McCullen, “[f]or a problem shown to
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.” 573 U.S. at 493.
Here, the complaints indicate a problem that arises infrequently and in a single area of
7
The 36-inch width limitation did not stem from Chapman’s opinions regarding
safety. Rather, Chapman “didn’t feel any of the islands regardless [of width] were safe to
be on.” Aplt. App., Vol. II at 359. Chapman’s “years of experience dealing with unsafe
situations involving pedestrians on medians in Sandy City,” Maj. Op. at 15, therefore did
not inform the Ordinance’s width limitation.
8
Several of the complaints were regarding the mere presence of individuals on
medians and expressed no traffic-safety concerns. See, e.g., Aplee. App., Vol. II at 287
(“[T]ransient standing on the median asking for money for his infection.”); id. at 312
(“Panhandler on the island stopping traffic and asking for money.”); id. at 324 (indicating
that a “panhandler” is in the “middle of [the] road”); id. at 333 (“Panhandler on the
median . . . getting mad when being refused” and “spit on [the] comp[lainant’s] truck.”).
7
Sandy City.9 The City’s decision in this case to ban all sitting or standing on many
medians throughout the city is, as in McCullen, “hardly a narrowly tailored solution.” Id.
Further, the record does not reveal the characteristics of the medians involved in
the complaints—whether the medians are narrower than 36 inches, wider than 36 inches,
paved, or unpaved. In other words, the record does not show whether the Ordinance in
fact addresses any problem the complaints identified. So we are unable to determine
whether the problem the City identified from the complaints—the potential for people to
fall off medians into traffic—would actually be addressed by the Ordinance’s
prohibitions. Absent such evidence of tailoring—of a relationship between the end and
the means—the Ordinance fails. See, e.g., McCutcheon v. Fed. Election Comm’n, 572
U.S. 185, 218 (2014) (“In the First Amendment context, fit matters.”).
As drafted, the Ordinance burdens a substantial amount of speech. And Sandy
City has failed to show that the Ordinance does not “burden substantially more speech
than is necessary to further” its interest in preventing people from falling off medians into
traffic. Ward, 491 U.S. at 799. Given the amount of speech it burdens, the interest the
City identified to justify that burden, and the lack of fit between the two, the Ordinance is
not narrowly tailored and does not survive intermediate scrutiny.
9
The record indicates that the twenty-nine complaints in the record could be
underinclusive. Regardless, Chapman—who testified that he personally fielded
complaints that may not have been documented—stated that “[m]ost of” the complaints
related to medians “at intersections” and involved the main roads and places with
freeway access. Aplt. App., Vol. II at 353.
8
D
The Ordinance also fails intermediate scrutiny because the City has not shown that
“alternative measures that burden substantially less speech would fail to achieve [its]
interests.” McCullen, 573 U.S. at 495. The majority avoids analyzing the availability of
alternative measures by stating that “we do not even reach the question of whether ‘the
government’s interest could be adequately served by some less-speech-restrictive
alternative’ if the Ordinance is not ‘substantially broader than necessary’ to promote the
City’s interest in public safety.” Maj. Op. at 16–17 (quoting Ward, 491 U.S. at 800). But
the majority cites to no authority for this statement which, indeed, has no support in the
law.10 As we have explicitly stated, “[t]he Supreme Court has not discouraged courts
from considering alternative approaches to achieving the government’s goals when
determining whether a content-neutral regulation is narrowly tailored to advance a
significant government interest.” Verlo v. Martinez (Verlo I), 820 F.3d 1113, 1135 (10th
Cir. 2016). And the Supreme Court itself has looked to the government’s other options
for addressing the stated interest to determine whether a challenged regulation is
substantially broader than necessary and thereby violates the First Amendment.
In McCullen, the Supreme Court’s entire narrow-tailoring analysis consisted of
discussing alternative measures the government could have utilized to further its
substantial interests. See 573 U.S. at 490–96. The Supreme Court first articulated the
government’s stated interest, then identified other regulations already in existence “that
10
Even Sandy City does not argue that the court need not evaluate the availability
of alternative measures in conducting its narrowly tailored analysis.
9
prohibit[] much of [the targeted] conduct,” id. at 491, and alternative regulations the
government could enact that would prohibit the targeted conduct, id. at 491–93. The
Court did not—as the majority here suggests a First Amendment analysis must—first
conclude that the challenged regulation was substantially broader than necessary, and
then evaluate the availability of less speech-restrictive alternatives. Rather, the Court
concluded that the challenged regulation was substantially more broad than necessary
because of the availability of less speech-restrictive alternatives. Id. at 490–94; accord
Verlo I, 820 F.3d at 1135 (“[W]hen considering content-neutral regulations, the
[Supreme] Court itself has examined possible alternative approaches to achieving the
[state’s] objective to determine whether the [state’s] chosen approach burdens
substantially more speech than necessary.”).
And in this case, there are numerous alternative measures Sandy City could have
employed to address the risks associated with people falling off medians into traffic. For
example, Sandy City “might have considered limiting activity on medians only at night,
when the dark makes it more difficult for drivers to see.” Cutting v. City of Portland, 802
F.3d 79, 92 (1st Cir. 2015). Sandy City also could have examined “pedestrian and
vehicle traffic patterns” and limited the Ordinance to certain times of day when traffic is
busiest or to certain areas where the speed limit is greatest. Id. at 88. Sandy City did not
consider such limitations.
In addition to narrowing the Ordinance by time of day or pedestrian and vehicle
traffic, Sandy City could have applied the Ordinance only to those medians which were
the focus of the complaints the City received. See Aplee. App., Vol. II at 277–341. As
10
discussed, most of the medians that were the subject of citizen complaints were within
half a mile of each other and were near on- and off-ramps for Interstate Highway 15. The
City could have limited the Ordinance to medians in areas that had the most potential for
safety problems.
Sandy City also could have used already-existing laws to ensure public safety. As
in Cutting, the Sandy City citizen complaints showed that much of the “danger to drivers
and other users of the streets . . . was tied to concerns about disruptive and inattentive
individuals on median strips.” 802 F.3d at 90. Specifically, citizens complained that
panhandlers “appeared to be intoxicated or high” or “were having trouble walking[ and]
keeping their balance.” Aplt. App., Vol. II at 357. This behavior could “be addressed
through existing local ordinances,” McCullen, 573 U.S. at 492, including Sandy City’s
statutes against public intoxication and impeding traffic. Additionally, some medians can
only be illegally accessed by jaywalking. By enforcing its laws prohibiting jaywalking,
the City could reduce access to medians without burdening speech.
“The point is not that [Sandy City] must enact all or even any of the proposed
[alternative approaches]. The point is instead that [the City] has available to it a variety
of approaches that appear capable of serving its interests, without excluding individuals
from areas historically open for speech and debate.” McCullen, 573 U.S. at 493–94. The
Ordinance is not unconstitutional merely “because there is some imaginable alternative
that might be less burdensome on speech.” Ward, 491 U.S. at 797. But, “[g]iven the
vital First Amendment interests at stake, it is not enough for” Sandy City “to simply say
that other approaches” would not work. McCullen, 573 U.S. at 496. Rather, the City
11
must “show[] that it seriously undertook to address the problem with less intrusive tools
readily available to it,” id. at 494, and that these or other “alternative measures that
burden substantially less speech would fail to achieve” its interests, id. at 495. Sandy
City has done neither, and that failure proves that the Ordinance is not narrowly tailored
to achieve the City’s interests.
E
In sum, the evidence the City relies on to show the requisite First Amendment
means-end fit—the testimony of Johnson and Chapman that they did not feel safe on
certain medians and the twenty-eight complaints about individuals in medians—is
inadequate to support the City’s decision to ban sitting or standing on all unpaved
medians and all paved medians narrower than 36 inches throughout the entire city. And
Sandy City has not shown that it attempted to address its safety concerns through other,
less speech-restrictive alternatives. The City has not demonstrated that the Ordinance
does not “burden substantially more speech than is necessary to further the government’s
legitimate interests,” Ward, 491 U.S. at 799, nor has it shown that “alternative measures
that burden substantially less speech would fail to achieve [its] interests,” McCullen, 573
U.S. at 495. The Ordinance fails intermediate scrutiny.
II
Because I do not think the Ordinance survives intermediate scrutiny, I cannot
merely assume, as the majority does, that the affected medians are traditional public fora.
But I do not think that the City has established as a matter of law that the affected
12
medians are nonpublic fora.11 I would therefore reverse the district court’s grant of
summary judgment to the City and remand.
We distinguish between traditional public, designated public, and nonpublic fora
by looking at: (1) physical characteristics of the property, including location, see Frisby
v. Schultz, 487 U.S. 474, 480–81 (1988); (2) intended use of the property, see United
States v. Kokinda, 497 U.S. 720, 727 (1990); and (3) actual use of the property, see Ark.
Educ. Telev. Comm’n v. Forbes, 523 U.S 666, 676 (1988). “[F]orum status is a fact-
intensive inquiry,” that “should be focused on the physical characteristics and the
intended and actual use[s] of” the property. Verlo I, 820 F.3d at 1132, 1139.
As to the physical characteristics of the medians, the record has photos of “nearly
every different type” of affected median. Aplt. Reply at 4. The photos reveal that,
physically, the affected medians vary widely. For example, some contain park benches,
memorial plaques, and signs readable only from close proximity, while others consist
only of a narrow strip of concrete, likely only a few inches in length. Some medians are
landscaped and accessible from crosswalks, while others are not.
11
Sandy City argues that “Evans has not provided any evidence that the unsafe
medians at issue here are public forums.” Aplee. Br. at 10. That argument misplaces the
burden. “[W]hen a law infringes on the exercise of First Amendment rights,” as the
Ordinance does, “its proponent,” here, Sandy City, “bears the burden of establishing its
constitutionality.” iMatter Utah v. Njord, 774 F.3d 1258, 1263 (10th Cir. 2014)
(quotation omitted). Thus, the burden was not on Evans to show the affected medians are
public fora subject to intermediate scrutiny, but on Sandy City to show either that the
medians are nonpublic fora and the Ordinance survives rational basis review, or the
Ordinance survives intermediate scrutiny.
13
As regards their intended uses, Sandy City claims “the sole purpose of the unsafe
medians is to regulate automobile traffic, divide lanes, and prevent automobiles from
crossing the centerlane in ways that would interrupt traffic flow.” Aplee. Br. at 11. This
may, in fact, be the City’s intended use of the affected medians. But we have
acknowledged that the government’s intended use does not control the forum analysis.
See First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114,
1124–26 (10th Cir. 2002) (“We first reject the contention that the City’s express intention
not to create a public forum controls our analysis. The government cannot simply declare
the First Amendment status of property regardless of its nature and its public use.”).
Further, the physical characteristics of some medians undercut the City’s stated intent.
For example, if some medians are park-like and have benches, “memorial trees,” or
“memorial plaques,” those features might indicate that some of the affected medians are
in fact intended for pedestrian use, including sitting or standing. Satawa v. Macomb Cty.
Road Comm’n, 689 F.3d 506, 522 (6th Cir. 2012) (“[T]he record refutes the Board’s
contention that, because Mound Road is a high-volume roadway, the Board does not
want people on the median. If this were so, it would be strange to provide access to the
median via sidewalk, and to allow various groups to erect benches, a gazebo, and plaques
that could only be read while standing on the median.”). The City’s own statement that
the affected medians are “largely accessible only by jaywalking,” Aplee. Br. at 11
(emphasis added), implies that at least some medians are accessible via crosswalk, which
may also indicate that those medians are intended for standing or sitting. See Satawa,
14
689 F.3d at 520 (“The median, moreover, invites visitors. It contains park benches and is
accessible by sidewalk.”).
Finally, regarding their actual uses, the record contains evidence that several
medians have been used for protected speech activities. And the record indicates that
Evans has used medians in Sandy City for speech activities on numerous occasions, both
before and after the City enacted the Ordinance. The record therefore indicates that at
least some of the affected medians have historically been used as public fora.
Because the record contains evidence that could support the conclusion that the
affected medians are public fora, Sandy City has not established as a matter of law that
the affected medians are nonpublic fora.
III
On the record presented, I would conclude that the Ordinance does not withstand
intermediate scrutiny. Further, Sandy City has not established as a matter of law that the
medians are nonpublic fora. I would reverse the district court’s grant of summary
judgment to the City and remand for further proceedings.
I respectfully dissent.
15