JURIST Guest Columnist Zachary L. Heiden, Legal Director of the American Civil Liberties Union of Maine, says that the Portland, Maine ordinance banning anyone from standing, sitting or loitering in any median strip is a content-based restriction that fails to comply with the First Amendment…

In Cutting v. City of Portland (PDF), the US District Court for the District of Maine permanently enjoined a Portland, Maine city ordinance that prohibited people from being on the city’s median strips. The ordinance banned anyone from standing, sitting or loitering in any median strip anywhere in the city (it defined a median strip as the paved or planted area dividing a road by direction of travel). The ban applied at all times and for all reasons (other than while crossing from one side of the street to the other). Portland’s median strips vary in size from a few feet to approximately twenty-five yards in width. Historically, they have been used by activists holding political signs, by politicians and their supporters while holding or planting campaign signs and by people asking for charity (whether for themselves or for others). The court found that Portland’s ordinance violated the First Amendment.

The American Civil Liberties Union of Maine and the law firm Goodwin Procter challenged the constitutionality of the ordinance on behalf of two activists who sometimes stand on median strips holding signs addressing timely matters of public concern (do not invade countries, do not torture prisoners, do work to eradicate economic inequality and so on) and a woman who, since becoming homeless, sometimes stands on median strips seeking charitable support from motorists.

Both holding signs and seeking alms are expressive activities that are entitled to protection under the First Amendment, a point that many members of the Portland public were unwilling to acknowledge.

A central question posed in Cutting was what level of scrutiny to apply to the ordinance: if the ordinance was content-based, the court would apply strict scrutiny (which in all probability would be fatal), but if the ordinance was content-neutral, then a less searching scrutiny would apply (though the ordinance would still be unconstitutional because it was not narrowly tailored to address the government’s asserted safety interest and did not leave open ample alternative means to reach the speakers’ intended audience).

The touchstone case for making that distinction is still Ward v. Rock Against Racism (though perhaps not for long). Ward involved the constitutionality of anti-noise restrictions adopted by the New York Parks Department governing the sound amplification systems used at Central Park’s Naumburg Bandshell. The bandshell is the site of numerous concerts during the warm months of the year, but the noise from some of these concerts tended to intrude upon the tranquility and peaceful enjoyment of the Sheep Meadow area of Central Park, which is a site traditionally reserved for quiet, contemplative activities. In order to balance the needs of both the bandshell listeners and the Sheep Meadow relaxers, the city adopted a rule that said that musical events at the bandshell had to use the city’s sound-amplification equipment and sound technicians. Rock Against Racism, the sponsor of an annual concert at the bandshell, objected to this rule and filed suit challenging it on First Amendment grounds.

The Supreme Court rejected this challenge, holding that the regulation was simply a time, place and manner restriction that did not regulate the content of the expression. The government’s original purpose (which the Court said is “controlling”) was constraint on the volume of sound, not on expression. Content-neutral time, place and manner restrictions, such as the restriction upheld in Ward, need to be narrowly tailored to serve a “significant” government interest and need to leave open ample alternative channels of communication. In contrast, content-based restrictions need to pass strict scrutiny by being narrowly tailored to serve a “compelling” government interest and being the least restrictive means of achieving that interest.

Government lawyers are generally careful to draft ordinances that do not make reference to the content of expression, and Portland’s lawyers were no exception. In fact, the Portland ordinance did not make reference to expression at all—instead, it referred to the conduct of being on a median strip, whether for expressive or purely recreational purposes. The plaintiffs argued that the ordinances were motivated by a hostility to particular expressive content—that of panhandlers asking motorists for money—but proving purpose in the absence of textual evidence is difficult.

What tipped the case for the plaintiffs in Cutting was an unwritten exception to the ordinance’s general prohibition covering the placing and removing of campaign signs during election season. Because Portland ratified this exception in its pleadings, the court considered it part of the city’s “authoritative construction of the ordinance.” Portland allowed for the placement of signs bearing a message relating to an election but not other types of political signs (such as a sign relating to war or economic policy). This construction—”the favoring of campaign messages over all others,” in the court’s words—put the city on the wrong side of the content line, and in order to survive the city would have had to satisfy the most exacting scrutiny (which it could not do).

Ordinances of this type have been debated and adopted with increasing frequency, and though the putative justification is safety, it is difficult to imagine that standing on median strips or in downtown areas has suddenly become more dangerous. More likely, many of these ordinances are motivated, at least in part, by a desire to minimize the appearance of poor people seeking charity in downtown commercial districts.

The city of Worcester, Massachusetts for example, recently adopted an ordinance banning “aggressive solicitation” (which includes any manner of solicitation carried out within an hour of sunset) and sharply limiting standing or walking on a traffic island. That ordinance was challenged in Thayer v. City of Worcester; the US District Court for the District of Massachusetts rejected a First Amendment challenge to that ordinance and the matter has been appealed to the US Court of Appeals for the First Circuit. The court in Thayer treated the ordinance as content-neutral, though it is possible that the appeals court will have a different view of the matter. For one thing, the ordinance was adopted in the context of a substantial debate in Worcester about panhandling. In addition, the enforcement of the Worcester ordinance appears to suffer from the same content-dependent determinations. Similar laws have been adopted, or are being considered, in Boise, Idaho, Missoula, Montana, Parkersburg, West Virginia and Madison, Wisconsin.

Though the weight of authority is against the constitutionality of these ordinances, their future is far from certain. At the public hearing for Portland’s ordinance, one woman who had personal experience with homelessness and begging on the street acknowledged that it makes people uncomfortable to see poor people holding signs on median strips or asking for spare change on the sidewalks of downtown shopping districts. She asked the city council, and the people of Portland, however, to remember that life is much more uncomfortable for the person doing the asking.

Zachary L. Heiden is the Legal Director of the ACLU of Maine. He has litigated cases to defend the civil rights and civil liberties of artists, immigrants, journalists, pregnant women, prisoners, protesters, religious minorities, students and whistleblowers. He is also an Adjunct Professor of Law at the University of Maine School of Law, where he teaches constitutional law and legislative process.

Suggested citation: Zachary L. Heiden, Maine Median Strip Ordinance Unconstitutional , JURIST – Hotline, Mar. 14, 2014, http://jurist.org/hotline/2014/03/zachary-heiden-maine-panhandling.php.