Robert Reynolds v. Douglas Middleton , 779 F.3d 222 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2389
ROBERT S. REYNOLDS,
Plaintiff - Appellant,
v.
DOUGLAS A. MIDDLETON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cv-00779-JAG)
Argued: October 28, 2014 Decided: February 24, 2015
Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Diaz and Senior Judge Davis
joined.
ARGUED: Brian Timothy Burgess, GOODWIN PROCTER LLP, Washington,
D.C., for Appellant. Andrew Ramsey Newby, OFFICE OF THE COUNTY
ATTORNEY, Henrico, Virginia, for Appellee. ON BRIEF: William M.
Jay, Washington, D.C., Kevin P. Martin, GOODWIN PROCTER LLP,
Boston, Massachusetts, for Appellant. Joseph P. Rapisarda, Jr.,
Lee Ann Anderson, COUNTY OF HENRICO, Henrico, Virginia, for
Appellee.
TRAXLER, Chief Judge:
Robert Reynolds is homeless and supports himself by
soliciting donations in Henrico County, Virginia. Reynolds
brought an action raising First Amendment challenges to a
Henrico County ordinance that prohibits solicitation within
County roadways. The district court granted summary judgment in
favor of the County, and Reynolds appeals. For the reasons that
follow, we vacate the grant of summary judgment and remand for
further proceedings.
I.
Prior to 2012, Henrico County had an ordinance that
prohibited those “standing” in County roadways, which the
ordinance defined to include the medians, from distributing
handbills, soliciting contributions, or selling merchandise to
car drivers or passengers. Roadway solicitors got around the
ordinance by soliciting funds while sitting in the medians.
Police Chief Douglas Middleton, the named defendant, urged
the Henrico County Board of Supervisors to consider amending the
ordinance to prohibit all roadway solicitation while standing or
sitting. At a public hearing on the issue, Middleton stated
that the number of people soliciting while sitting in medians
had increased “[i]n the past few years and particularly the
current year,” J.A. 63, and that this increase had led to an
increased number of complaints from citizens. Middleton
2
explained that he believed soliciting from the median was
dangerous to the solicitors and to drivers and that prohibiting
median-solicitation would make the roads safer. Middleton
stated that “as chief of police I cannot ignore the increasingly
present danger that the current activities are creating, [and] I
would rather proceed to avoid a tragedy, and I am responding to
that in a proactive manner as opposed to being reactive.” J.A.
64.
Middleton did not consult traffic-safety or other experts
before seeking the changes to the ordinance, but based his
proposal on his opinion that it is unsafe to solicit “in the
highway,” an opinion that he based on his “personal
observations, the credible reports of other law-enforcement
officers and citizens, and [his] experience as a law-enforcement
officer for over 40 years.” J.A. 60. Middleton did not give
any specific examples of accidents or other problems caused by
median-solicitors in his deposition testimony or in his
statements at the public hearing.
The County Attorney’s Office prepared a report addressing
solicitation on County highways. The report stated that there
had been an “increased presence of [roadway solicitors] in
County highways, especially in the medians of numerous
intersections in the West End of the County,” J.A. 29, and that
“[n]umerous complaints have been received from County citizens
3
over the past several months,” J.A. 30. According to the
report, police received “97 calls for service concerning
panhandling” in 2011 and received 93 such calls in the first 8
months of 2012. J.A. 31. There is no other empirical evidence
in the record of actual problems caused by panhandling or
soliciting from medians.
The Board of Supervisors agreed with Middleton and voted to
amend the ordinance. The amended version of the ordinance (the
“Amended Ordinance”) provides as follows:
Sec. 22–195. Distributing handbills, soliciting
contributions or selling merchandise or services in
highway.
(a) It shall be unlawful for any person while in the
highway to:
(1) Distribute handbills, leaflets, bulletins,
literature, advertisements or similar material to the
drivers of motor vehicles or passengers therein on
highways located within the county.
(2) Solicit contributions of any nature from the
drivers of motor vehicles or passengers therein on
highways located within the county.
(3) Sell or attempt to sell merchandise or
services to the drivers of motor vehicles or
passengers therein on highways located within in the
county.
(b) For purposes of this section, the term “highway”
means the entire width of a road or street that is
improved, designed, or ordinarily used for vehicular
travel and the shoulder, the median, and the area
between the travel lane and the back of the curb.
4
J.A. 16. Given the definition of “highway,” the Amended
Ordinance prohibits a homeless person from sitting (or standing)
in a median with a sign asking for donations or offering to work
in exchange for food, but it permits, for example, campaign
workers with signs urging drivers to vote for their candidate to
gather in the medians. Solicitation and other activities
prohibited on the highways and medians remain permissible on
County sidewalks, which are not included in the definition of
“highway.”
Acting pro se, Reynolds brought this action challenging the
Amended Ordinance on First Amendment grounds. Reynolds and the
County cross-moved for summary judgment. The district court
denied Reynolds’ motion and granted the County’s. The court
recognized that streets and medians are traditional public
forums, but the court nonetheless upheld the Amended Ordinance
as a content-neutral and narrowly tailored time, place, and
manner restriction on speech. This appeal followed.
II.
There is no question that panhandling and solicitation of
charitable contributions are protected speech. See Clatterbuck
v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013).
There is likewise no question that public streets and medians
qualify as “traditional public forum[s].” Id. at 555; see
Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en
5
banc) (“Median strips, like sidewalks, are integral parts of the
public thoroughfares that constitute the traditional public
fora.”).
The government’s power to regulate speech in a traditional
public forum is “limited, though not foreclosed.” Clatterbuck,
708 F.3d at 555. Content-neutral time, place, and manner
regulations of speech in traditional public forums are subject
to intermediate scrutiny – that is, the restrictions must be
“narrowly tailored to serve a significant government interest
and leave open ample alternative channels of communication.”
Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert.
denied, 135 S. Ct. 183 (2014). A content-neutral regulation is
narrowly tailored if it does not “burden substantially more
speech than is necessary to further the government’s legitimate
interests.” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)
(internal quotation marks omitted). To be valid, the regulation
“need not be the least restrictive or least intrusive means of
serving the government’s interests. But the government still
may not regulate expression in such a manner that a substantial
portion of the burden on speech does not serve to advance its
goals.” Id. (internal quotation marks omitted).
Reynolds, now represented by counsel, challenges the
district court’s decision upholding the Amended Ordinance.
Reynolds argues that the County bears the burden of proof and
6
that the County’s evidence was insufficient to establish that
the Amended Ordinance is narrowly tailored or that it leaves
open ample alternative channels of communication. 1
III.
We begin with the burden of proof. “[W]here a plaintiff
claims suppression of speech under the First Amendment, the
plaintiff bears the initial burden of proving that speech was
restricted by the governmental action in question.” Lim v. City
of Long Beach, 217 F.3d 1050, 1054 n.4 (9th Cir. 2000); see
American Legion Post 7 v. City of Durham, 239 F.3d 601, 606 (4th
Cir. 2001) (threshold determination triggering application of
First Amendment scrutiny is whether challenged regulation
burdens speech). After the plaintiff makes his initial showing,
the burden then falls on the government to prove the
constitutionality of the speech restriction. See McCullen, 134
S. Ct. at 2540 (“To meet the requirement of narrow tailoring,
the government must demonstrate [that the speech restriction
1
Reynolds expressly does not challenge the district court’s
determination that the Amended Ordinance is content- neutral,
and we therefore do not consider that issue. We note that the
Supreme Court recently heard argument in a case involving the
content-neutrality of a town ordinance regulating temporary
signs. See Reed v. Town of Gilbert, S. Ct. Docket No. 13-502
(argued Jan. 12, 2015). In the event the Supreme Court’s
decision in Reed undermines the district court’s analysis of the
neutrality issue, the district court on remand will be free to
reconsider the issue. See, e.g., TFWS, Inc. v. Franchot, 572
F.3d 186, 191 (4th Cir. 2009) (noting exception to the law-of-
the-case doctrine for change in controlling legal authority).
7
meets the relevant requirements].” (emphasis added)); see also
Edenfield v. Fane, 507 U.S. 761, 770 (1993) (“It is well
established that the party seeking to uphold a restriction on
commercial speech carries the burden of justifying it.”
(internal quotation marks and alteration omitted)).
Here, Reynolds made the necessary threshold showing. As
discussed, solicitation of charitable contributions is speech,
and Reynolds alleged in his verified complaint that the Amended
Ordinance inhibits his ability to collect donations by requiring
him to move to locations where it is more difficult for drivers
to make contributions. 2 See Williams v. Griffin, 952 F.2d 820,
823 (4th Cir. 1991) (verified complaint “is the equivalent of an
opposing affidavit for summary judgment purposes, when the
allegations contained therein are based on personal knowledge”).
The County was therefore obligated to prove that the Amended
Ordinance is narrowly tailored to further a significant
government interest and that it leaves open ample alternative
channels of communication.
The more difficult issue -- and the issue on which this
appeal turns -- is determining precisely what the County must
present in order to carry its burden of proof. The County
2
As Reynolds explained in his complaint, “forcing him out
of the roadway results in the drivers[’] inability to hand him
money because they cannot reach across the passenger seat and
usually several more feet into Reynolds’ hand.” J.A. 9.
8
contends that intermediate scrutiny “does not always require an
evidentiary showing,” Brief of Respondent at 20, and that it is
entitled to rely on common sense and logic, as well case law and
the experience of other jurisdictions, when defending the
Amended Ordinance.
The County’s formulation certainly finds support in our
precedent. We have not required an evidentiary record to uphold
a speech regulation that is materially indistinguishable from
one that has been found constitutional by this court or the
Supreme Court. See Wag More Dogs, LLC v. Cozart, 680 F.3d 359,
365 n.3 (4th Cir. 2012) (“[C]onsistent with over thirty years of
case law from the Supreme Court and our court, [the County
defendant] has established that the Sign Ordinance passes
constitutional muster under the rubric of intermediate scrutiny.
It need not reinvent the wheel by coming forward with voluminous
evidence justifying a regulation of the type that has been
upheld several times over.”). 3 Likewise, we generally have not
3
Unlike the sign and billboard regulation in Wag More Dogs,
however, the Amended Ordinance is not one of a type that has
consistently been found constitutional. Courts have struck down
some solicitation bans and upheld others, with the outcome
turning on the details and wording of the various regulations
(such as whether the ban applied to medians) as well as the
evidentiary record developed by the parties. See, e.g., Comite
de Jornaleros de Redondo Beach v. City of Redondo Beach, 657
F.3d 936, 949 (9th Cir. 2011) (en banc) (striking down ordinance
banning solicitation of employment or contributions from all
city streets and medians in part because the City introduced
(Continued)
9
required the government to present evidence to show the
existence of a significant governmental interest; common sense
and the holdings of prior cases have been found sufficient to
establish, for example, that the government has a significant
interest in public safety. See Ross, 746 F.3d at 555; American
Legion Post 7, 239 F.3d at 609; cf. United States v. Chapman,
666 F.3d 220, 226-27 (4th Cir. 2012) (recognizing that “common
sense and case law” can establish the existence of governmental
interest in Second Amendment case subject to intermediate
scrutiny).
As to the other narrow-tailoring requirements, our cases
have not been entirely clear about what the government must
present in order to carry its burden. For example, we have held
that intermediate scrutiny “requires the government to produce
evidence that a challenged regulation materially advances an
important or substantial interest by redressing past harms or
preventing future ones.” Giovani Carandola, Ltd. v. Bason, 303
F.3d 507, 515 (4th Cir. 2002) (emphasis added; internal
evidence of traffic problems as to a few major streets and
medians but “offered no evidence to justify extending its
solicitation ban throughout the City in such a sweeping
manner”); Int’l Soc. for Krishna Consciousness of New Orleans,
Inc. v. City of Baton Rouge, 876 F.2d 494, 498 (5th Cir. 1989)
(discussing evidence presented at trial when upholding ordinance
prohibiting solicitation of employment, business or charitable
contributions from occupants of vehicles on street (defined to
include medians)).
10
quotation marks omitted). We have explained that although the
government need not “present a panoply of empirical evidence in
order to satisfy this standard, it must nonetheless make some
evidentiary showing that the recited harms are real, not merely
conjectural, and that the [challenged regulation] alleviates
these harms in a direct and material way.” Ross, 746 F.3d at
556 (emphasis added; citations, internal quotation marks and
alteration omitted). While these cases seem to insist on
evidence, we have in some cases nonetheless relied on things
other than objective evidence when determining that speech
restrictions advanced the government’s asserted interest. See,
e.g., Ross, 746 F.3d at 556 (relying on “appeals to common sense
and logic” (internal quotation marks omitted)); Educational
Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 589 (4th
Cir. 2010) (relying on “history, consensus, and common sense”).
In our view, however, the Supreme Court’s recent decision
in McCullen v. Coakley clarifies what is necessary to carry the
government’s burden of proof under intermediate scrutiny.
McCullen involved a First Amendment challenge to a Massachusetts
buffer-zone statute that prohibited standing on a “public way or
sidewalk within 35 feet of an entrance or driveway” of an
abortion clinic. McCullen, 134 S. Ct. at 2525. After a bench
trial on stipulated facts, the district court upheld the
statute, and the First Circuit affirmed. The Supreme Court
11
applied intermediate scrutiny – the same standard we apply in
this case – and reversed.
As to whether the statute furthered a significant
governmental interest, the Court referred to prior case law
recognizing the legitimacy of the government’s interests in
public safety and the unobstructed use of roadways and sidewalks
and then stated, without reference to any evidence presented at
trial, that “[t]he buffer zones clearly serve these interests.”
Id. at 2535. The Court nonetheless held that the statute was
not narrowly tailored because it burdened substantially more
speech than necessary to serve those interests. In rejecting
the Commonwealth’s narrow-tailoring arguments, the Court
repeatedly grounded its conclusions on the absence of evidence
supporting the Commonwealth’s arguments. See id. at 2539(“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.”); id. (rejecting
State’s argument that enforcing existing laws would not prevent
the safety and congestion problems addressed by the statute
because the Commonwealth did not identify “a single prosecution
brought under those laws within at least the last 17 years” and
therefore “has not shown that it seriously undertook to address
the problem with less intrusive tools readily available to it”);
id. at 2540 (“Given the vital First Amendment interests at
12
stake, it is not enough for Massachusetts simply to say that
other approaches have not worked.”).
We draw several lessons from the Court’s decision in
McCullen. First, the Court’s discussion of whether the statute
furthered an important governmental interest confirms that the
existence of a governmental interest may be established by
reference to case law. See id. at 2535. Second, the Court’s
flat declaration that “[t]he buffer zones clearly serve these
interests,” id., indicates that objective evidence is not always
required to show that a speech restriction furthers the
government’s interests. 4 Finally, the Court’s rejection of the
Commonwealth’s narrow-tailoring arguments makes it clear that
intermediate scrutiny does indeed require the government to
present actual evidence supporting its assertion that a speech
restriction does not burden substantially more speech than
necessary; argument unsupported by the evidence will not suffice
to carry the government’s burden. With these principles in
4
In McCullen, the relationship between the government’s
asserted interest and the challenged statute was obvious -- the
Commonwealth was concerned about congestion around abortion
clinics obstructing traffic and preventing access to the
clinics, and the statute prohibited people from gathering in
roadways around abortion clinics. In cases where the
relationship is not so obvious, we do not believe that McCullen
would relieve the government of its obligation to present
evidence showing that the speech regulation furthers its
asserted interests.
13
mind, we turn now to Reynolds’ substantive challenges to the
Amended Ordinance.
IV.
Reynolds argues the County failed to prove that the Amended
Ordinance is narrowly tailored to serve a significant
governmental interest.
A.
The County contends that the solicitation activities that
the Amended Ordinance prohibits can obstruct traffic and are
dangerous to drivers and solicitors alike, and that the Amended
Ordinance furthers the County’s interests in safety and
unobstructed use of its highways. Reynolds does not dispute
that the County’s asserted interests are legitimate and
substantial. See McCullen, 134 S. Ct. at 2535 (recognizing “the
legitimacy of the government’s interests in ensuring public
safety and order [and] promoting the free flow of traffic on
streets” (internal quotation marks omitted)); Brown v. Town of
Cary, 706 F.3d 294, 305 (4th Cir. 2013) (“It is beyond dispute
that the Town’s stated interests in promoting aesthetics and
traffic safety are substantial.”). Instead, Reynolds contends
that the County’s evidence was insufficient to establish that
the roadway-solicitation prohibited by the Amended Ordinance is
dangerous or that the Amended Ordinance actually furthers the
County’s asserted interests. We disagree.
14
Under intermediate scrutiny, the County is required to
demonstrate that the Amended Ordinance “materially advances an
important or substantial interest by redressing past harms or
preventing future ones.” Ross, 746 F.3d at 556 (internal
quotation marks omitted). Chief Middleton testified about the
increasing number of people soliciting contributions from
intersections, “many” of which are very busy, J.A. 102, and he
described potential dangers associated with that activity, see
J.A. 105 (noting that roadway solicitors might “misjudge the
traffic and step out in front of a car” and that an inattentive
driver might “run up onto the curb”). Even without evidence of
injuries or accidents involving roadway solicitors, we believe
the County’s evidence, particularly when it is considered along
with a healthy dose of common sense, is sufficient to establish
that roadway solicitation is generally dangerous. See Ross, 746
F.3d at 556 (explaining that the government “is entitled to
advance its interests by arguments based on appeals to common
sense and logic” (internal quotation marks omitted)).
And once we accept that roadway solicitation is dangerous,
then it is apparent that the Amended Ordinance furthers the
County’s safety interests. Indeed, we believe it is as obvious
that the Amended Ordinance furthers the County’s safety
interests as it was obvious that the statute in McCullen
furthered Massachusetts’ safety interests, as both move
15
pedestrians out of roadways and away from traffic. While the
record in this case does not establish how many people solicit
from the roadways or how many use the roadways for purposes
permitted by the Amended Ordinance, it does establish that
roadway solicitors had increased to a number sufficient to worry
a law-enforcement officer with 40 years’ experience and to
prompt hundreds of citizen complaints. Under these
circumstances, common sense and logic compel the conclusion that
by removing solicitors from County roadways, the Amended
Ordinance reduces the number of people engaging in a dangerous
activity and thus furthers the County’s safety interest in a
direct and material way.
B.
In addition to furthering a significant governmental
interest, a narrowly tailored regulation “must not burden
substantially more speech than is necessary to further the
government’s legitimate interests.” McCullen, 134 S. Ct. at
2535 (internal quotation marks omitted). As noted, the
regulation need not be the least restrictive means available,
“[b]ut the government still may not regulate expression in such
a manner that a substantial portion of the burden on speech does
not serve to advance its goals.” Id. (internal quotation marks
omitted).
16
Reynolds contends that if the County has established any
safety interest at all, that interest is limited to particularly
busy intersections, where Chief Middleton’s concerns were
focused. See J.A. 101 (“I think any time you have individuals
in an intersection, particularly busy intersections, that
there’s a public safety concern.”); J.A. 102 (“[W]ith traffic as
busy as it is in many of these intersections, and the volume
that was there, I was as concerned for the individuals that were
soliciting as I was for the drivers.”). Reynolds thus argues
that the Amended Ordinance burdens more speech than necessary
because it bans solicitation not just on the busiest or most
dangerous roads and intersections, but on all roadways and
medians in the County, without regard to whether solicitation
could be safely conducted there. See Weinberg v. City of
Chicago, 310 F.3d 1029, 1040 (7th Cir. 2002) (“The concerns
behind . . . the ordinance were to alleviate sidewalk congestion
[around the United Center]. . . . [W]e cannot see how this can
justify a restriction which prevents a peddler from selling his
wares in large parking lots, less congested walkways, or
sidewalks in less proximity to the United Center.”).
Reynolds also contends that the Amended Ordinance burdens
more speech than necessary because the County has other, less
restrictive means available to further its asserted interest.
According to Reynolds, the County could achieve its safety
17
interest by enforcing existing traffic laws -- such as those
governing jaywalking, obstructing traffic, loitering, and the
like -- against any roadway solicitors who in fact obstruct
traffic or otherwise cause problems. The County presented no
evidence demonstrating why these alternatives would not serve
its safety interest as effectively as the Amended Ordinance, and
Reynolds therefore argues that the district court erred in
finding the Amended Ordinance narrowly tailored.
Preliminarily, we note that the Amended Ordinance burdens a
wide range of protected speech. See Watchtower Bible & Tract
Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 165
(2002) (explaining that courts must consider “the amount of
speech covered by the ordinance and whether there is an
appropriate balance between the affected speech and the
governmental interests that the ordinance purports to serve”).
The Amended Ordinance prohibits all forms of leafletting, which
is one of the most important forms of political speech, see
McCullen, 134 S. Ct. at 2536 (“[H]anding out leaflets in the
advocacy of a politically controversial viewpoint is the essence
of First Amendment expression; no form of speech is entitled to
greater constitutional protection.” (internal quotation marks
and alteration omitted)), as well as soliciting any kind of
contribution, whether political or charitable, or selling or
attempting to sell goods or services. All of this speech is
18
constitutionally protected, and it is all prohibited. Indeed,
the only thing the Amended Ordinance prohibits is speech; no
portion of it is addressed to pure conduct, such as blocking
traffic.
Despite the broad swath of speech prohibited by the Amended
Ordinance, the County insists the Amended Ordinance is narrowly
tailored because it prohibits only the most dangerous kind of
roadway speech – “transactional” speech that “necessarily
invites physical interaction between pedestrians and motor
vehicles.” Brief of Respondent at 34. The County thus asserts
that the Amended Ordinance does not burden more speech than
necessary “because it only eliminates the precise problem
identified by the County – the disruption caused by
transactional speech in the middle of the highway.” Id. In the
County’s view, the dangers of roadway solicitation are the same
on busy roads and quiet back roads. Because the danger is
present on all roads, the County contends that it is appropriate
for the Amended Ordinance to apply to all county roads.
While the County’s arguments are not without some appeal,
they are essentially the same arguments made in McCullen, and
they fail here for the same reason they failed in McCullen –
lack of evidentiary support. The Amended Ordinance applies to
all County roads, regardless of location or traffic volume, and
includes all medians, even wide medians and those beside traffic
19
lights and stop signs. The Ordinance thus prohibits all
roadside leafletting and solicitation, even where those
activities would not be dangerous. The County’s evidence,
however, established, at most, a problem with roadway
solicitation at busy intersections in the west end of the
county. Given the absence of evidence of a county-wide problem,
the county-wide sweep of the Amended Ordinance burdens more
speech than necessary, just as the statute in McCullen -- a
statewide statute aimed at a problem in one location -- burdened
more speech than necessary. See McCullen, 134 S. Ct. at 2539(“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 is hardly a narrowly tailored solution.”).
The County also asserts that the Amended Ordinance is
narrowly tailored because other, less speech-restrictive methods
– specifically, the prior versions of the Ordinance – were
ineffective to control the problem. As to the other laws
identified by Reynolds, the County argues those laws “are no
substitute for the direct fit of the [Amended] Ordinance.
Solicitors are not loitering, and those camped out in medians
20
are not jaywalking, and yet they may still cause the disruption
identified by the County.” Brief of Respondent at 42.
As the Court explained in McCullen, however, the burden of
proving narrow tailoring requires the County to prove that it
actually tried other methods to address the problem. “Given the
vital First Amendment interests at stake, it is not enough for
[the government] simply to say that other approaches have not
worked.” McCullen, 134 S. Ct. at 2540. Instead, the government
must “show[] that it seriously undertook to address the problem
with less intrusive tools readily available to it,” id. at 2539(emphasis added), and must “demonstrate that [such] alternative
measures . . . would fail to achieve the government’s interests,
not simply that the chosen route is easier,” id. at 2540(emphasis added). In this case, the County simply presented no
evidence showing that it ever tried to use the available
alternatives to address its safety concerns. That is, there is
no evidence that the County ever tried to improve safety by
prosecuting any roadway solicitors who actually obstructed
traffic, or that it ever even considered prohibiting roadway
solicitation only at those locations where it could not be done
safely. Without such evidence, the County cannot carry its
burden of demonstrating that the Amended Ordinance is narrowly
tailored. See id. at 2539 (rejecting State’s argument that
enforcing existing laws would not prevent the safety and
21
congestion problems addressed by the buffer-zone law because the
State did not identify “a single prosecution brought under those
laws within at least the last 17 years”). The district court
therefore erred by finding County’s evidence sufficient to show
narrow tailoring.
V.
Although we have concluded that the County’s evidence
failed to establish that the Amended Ordinance was narrowly
tailored, we believe the proper course is to vacate and remand.
Our analysis in this case was driven by the Supreme Court’s
decision in McCullen, which was issued after the district
court’s ruling in this case. As we have explained, McCullen
clarified the law governing the evidentiary showing required of
a governmental entity seeking to uphold a speech restriction
under intermediate scrutiny. Because the parties did not have
McCullen’s guidance at the time they prepared their cross-
motions for summary judgment, we believe the County should have
an opportunity to gather and present evidence sufficient to
satisfy McCullen’s standard. Accordingly, we hereby vacate the
district court’s order granting summary judgment to the County
22
and remand for further factual development and additional
proceedings as may be required. 5
VACATED AND REMANDED
5
Because the evidence does not establish that the Amended
Ordinance is narrowly tailored, we are not required to consider
whether the Ordinance leaves open ample alternate channels of
communication. See McCullen v. Coakley, 134 S. Ct. 2518, 2540
n.9 (2014). Nonetheless, because the issue will likely arise on
remand, we briefly address it.
The “available alternatives need not be the speaker’s first
or best choice or provide the same audience or impact for the
speech.” Ross v. Early, 746 F.3d 546, 559 (4th Cir.), cert.
denied, 135 S. Ct. 183 (2014). Nonetheless, the alternatives
must be adequate. See Members of City Council of L.A. v.
Taxpayers for Vincent, 466 U.S. 789, 812 (1984) (“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.” (citation
omitted)). The district court noted that the Amended Ordinance
permits leafletting and solicitation on sidewalks and along the
side of the street and concluded that these alternatives were
sufficient as a matter of law. As indicated in his verified
complaint, however, Reynolds’ target audience is drivers, and
medians offer the most effective way to reach drivers. As
Reynolds explains, “medians – which are isolated from other
pedestrians, parked cars, and other obstacles that limit
visibility, and which can be seen by vehicles in two-way traffic
– offer unique benefits to speakers seeking to disseminate their
views.” Brief of Appellant at 50. While there is no question
that alternative channels of communication exist, Reynolds’
evidence raises a question of fact about the adequacy of those
alternatives. See Weinberg v. City of Chicago, 310 F.3d 1029,
1041 (7th Cir. 2002) (“[T]he simple fact that Weinberg is
permitted to communicate his message elsewhere does not end our
analysis if the intended message is rendered useless or is
seriously burdened.”). Because there are genuine questions of
material fact, summary judgment was inappropriate.
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