PORTLAND, Maine — Three Portland residents are suing the city under the state and federal civil rights acts, saying a recent ordinance prohibiting individuals from stopping in median strips infringes on their constitutional rights to free expression.

The controversial ordinance language, which city homeless advocates viewed as unfairly targeting panhandlers who stood in medians to seek money from passing motorists, was approved by the City Council in July, a year after the same measure was rejected because of free speech concerns.

Supporters of the ordinance argued it was approved in the interest of public safety, saying individuals standing in the median strips were at greater risk of being clipped by oncoming traffic.

With the July change, the city’s ordinance states that no one can “stand, sit, stay, drive or park” in a median strip, and furthermore hammers home the point by adding that “pedestrians may use the median strips only in the course of crossing from one side of the street to others.”

Neighborhood prosecutor Trish McAllister — a city attorney who works with the Portland Police Department — wrote in a memo to the council at the time that because the updated ordinance language doesn’t specifically block “panhandling,” it’s legally defensible. She wrote that because the rule would restrict “any person” and is “unrelated to the content of expression,” it would stand up against a First Amendment challenge.

That assessment is now being put to the test.

A lawsuit against the city over the ordinance was filed Tuesday in U.S. District Court on behalf of Michael Cutting, Wells Staley-Mays and Alison Prior by Zachary Heiden, legal director of the American Civil Liberties Union of Maine.

Heiden wrote in his complaint that Cutting and Staley-Mays aim to be able to share political opinions through demonstrations in the median strips, while Prior depends “on assistance from strangers for basic necessities” and wants to “stand peacefully and quietly on a median with a sign that says, ‘Please Help.’”

The attorney wrote that the city overshoots its “stated goal of protecting public safety” with ordinance terms that are too broad.

“[T]he ordinance is unconstitutionally overbroad because it prohibits engaging in communicative activities on medians regardless of the medians’ size and other features that in many cases render them eminently suitable — and, indeed, seemingly designed — for just such activity,” Heiden wrote in his court filing, in part.

“For example, as written, the ordinance forbids standing on the median that extends between the two directions of traffic on Franklin Street from Marginal Way to Middle Street in Portland. This median is approximately 50 feet wide, planted with grass and trees, and has traditionally been used for a variety of communicative activities,” he continued. “Likewise, the ordinance on its face makes it illegal to remain on the median at Fore Street and Silver Street in Portland, including for the purpose of engaging in speech, despite the fact that this median contains a park bench, grass and decorative plants.”

The plaintiffs are asking the court to declare the ordinance unconstitutional and prevent the city from enforcing it.

The ACLU is also challenging in court a Worcester, Mass., ordinance that aims to reduce so-called “aggressive panhandling” by prohibiting panhandling in certain public areas, including traffic islands, according to the Telegram & Gazette.

The topic of panhandlers’ rights has become a hot button issue in Maine in recent months. In addition to the Portland debate over median strips, the second and third largest cities in the state — Lewiston and Bangor, respectively — have been considering or approved ordinances blocking “aggressive panhandling,” often defined as making physical contact with passers-by or continuing to ask for money after a person has declined.

Portland already as a rule on the books prohibiting aggressive panhandling, but under the ordinance change has moved beggars away from the median strips in city streets, which had become high visibility spots to ask for money from motorists traveling in both directions.

Portland officials did not immediately respond to requests for comment on the Tuesday lawsuit.

Seth Koenig

Seth has nearly a decade of professional journalism experience and writes about the greater Portland region.