Cutting v. City of Portland, No. 14-1421 (1st Cir. Sept. 11, 2015).
Responding to complaints about panhandlers, the Portland, Maine city council has made it illegal to stand, sit, or stay on a median, except if you’re using a median to cross the road. Three Portlanders now assert that this traffic-median ordinance violates the First Amendment.
Like sidewalks, traffic medians, at least in Portland, are a traditional public forum—a kind of forum that the First Amendment wraps in special protections. Restrictions on speech in a traditional public forum must survive heightened judicial scrutiny, even when, as here, those restrictions don’t favor certain kinds of messages based on their content. In particular, such restrictions must be “narrowly tailored”: they can’t burden substantially more speech than is necessary.
Portland says its traffic-median ordinance is designed to protect drivers and pedestrians. But the danger to drivers and pedestrians, such as it was, was confined only to a few narrow traffic medians around town, not to all traffic medians. The danger also came mostly from people who intentionally left the medians to accost passersby and from others who stumbled in a stupor out into road. The ordinance, though, extends far beyond these dangers. It could easily deal with them with a narrower restriction, the First Circuit holds.
Portland also claims it’s worried about anyone sticking around on a median. It cites fourteen damaged street signs on medians and a few reports of cars veering onto medians, but some of these incidents resulted from bad weather and none involved pedestrians. Since 2008, a vehicle has hit only one Portlander on a median, and there the victim was a cyclist using a median to cross the road—something the ordinance explicitly allows.
Because Portland can protect public safety without so broad a restriction on speech, the First Circuit affirms the district court, which had permanently enjoined the ordinance.