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Portland's Ban on Street Median Panhandling Is Unconstitutional

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By Casey C. Sullivan, Esq. on September 21, 2015 6:58 AM

In 2012, police in Portland, Maine declared a "public safety emergency." Too many people, it seemed, were panhandling. Asking "brother, can you spare a dime," the mendicants would often stand on busy street corners and medians, entreating drivers as they passed by. Concerned that panhandlers would stumble into traffic -- or just wanting to keep the poor out of sight and out of mind -- the Portland City Council adopted a resolution banning virtually all activity in median strips.

The law banned virtually every use of a media, except for passing over it when crossing a street. Standing, sitting, staying -- all were illegal when done on a median. That indiscriminate ban on "virtually all expressive activity" violates the First Amendment's guarantee of free speech, the First Circuit ruled last Friday.

The Traditional Traffic Median Public Forum

The Lincoln-Douglas debates took place on a traffic median. Emma Goldman used to rally the workers from a soapbox between Fifth and Broadway. Even Donald Trump announced his candidacy from the middle of a public crosswalk.

Well, not exactly.

Though street medians aren't usually thought of as public gathering spaces, both the city of Portland and the plaintiffs agreed on appeal that the medians constituted a traditional public forum. Public fora are those places "held in trust for the use of the public" for "assembly, communicating thoughts between citizens, and discussing public questions." Sidewalks are the classic example, but medians aren't too far away either. Just look at the political signs that dot them every campaign season.

Narrow Tailoring? Nah, Just Ban Everything

The district court had struck down Portland's law on the grounds that it was a content-based restriction on speech, subject to strict scrutiny. The court made that decision based on Portland's interpretation that political signs would still be allowed under the law, but no other forms of median-based speech. The First Circuit, however, rejected that reading, noting that an unwritten policy on the law's implementation could not be the basis for invalidating the law altogether. (The court would simply have to tell the city to implement the law properly, in such a case.)

Instead, the First Circuit found that Portland's ordinance was a content-neutral "time, place, manner" restriction on speech in the forum. The time? Never. The place? Not the median. The manner? None.

But even content-neutral restrictions on speech must be narrowly tailored to a legitimate government purpose. Did Portland's sweeping prohibition of speech in street medians meet the narrow tailoring test? Of course not.

Not only does the ordinance ban almost all activity, and thus all speech, on medians, it defines medians themselves as widely as possible, from typical street medians to large promenades and public squares located between roads. Further, the city's public safety concerns did not justify an outright ban affecting all medians, since safety incidents were largely confined to a few places.

The ordinance struck down, Portland's mayor is currently considering whether to draft new laws to address panhandling. The ACLU of Maine, which represented the plaintiffs, questioned the need for further restrictions. "There are many more pressing problems in the city of Portland," said Zachary Heiden, ACLU of Maine's legal director.

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