PORTLAND, Maine — The U.S. Court of Appeals for the First Circuit in Boston is scheduled to hear arguments Friday in a dispute over whether the city of Portland can ban people from standing in median strips.
U.S. District Court Judge George Z. Singal ruled in February 2014 that the city’s 2013 ordinance against standing in median strips was an unconstitutional infringement on the free speech rights of people who might panhandle or hold political signs there.
The American Civil Liberties Union of Maine, along with the Boston law firm Goodwin Procter, helped bring the initial lawsuit challenging the ordinance on behalf of three Portland residents: two who had used median strips to hold political signs and one who stood in the narrow traffic dividers to ask for money from passing drivers.
Opponents of the measure have long argued the ordinance was simply a veiled attempt to move signs of poverty away from the city’s high-visibility locations, as well as the potential tourists and shoppers who might be passing them.
But city councilors who approved the ordinance the previous July said the rule was necessary for safety reasons, pointing to drivers’ complaints of median strip panhandlers acting aggressively or nearly falling into the paths of oncoming cars.
“I’ve had at least a half dozen incidents, personally, where I’ve had to alter the way I’ve been driving because of people in the median strips, either because someone has leaned out into traffic or because a car stopped short ahead of me,” Portland Mayor Michael Brennan, who voted in favor of the ban in 2013, said Thursday afternoon. “It’s totally a safety issue.”
City attorneys have argued that panhandlers and political demonstrators are allowed to hold signs up in a number of other high-traffic locations in Portland that are less dangerous.
“If this ordinance is upheld, people are still going to be able to ask for money on sidewalks and [beside] intersections without standing in median strips,” Brennan said. “We still believe it’s a safety issue.”
While Singal threw out Portland’s ordinance nearly a year ago, the First District Court of Appeals since then has hinted support for a similar Worcester, Massachusetts, ordinance.
In a July decision, the appeals court ruled Worcester could continue to enforce its ordinance while an ACLU lawsuit played out, saying because the restriction doesn’t discriminate based on what messages people in median strips are conveying, it’s not a free speech infringement.
However, the U.S. Supreme Court ruled in late June that a Massachusetts abortion clinic no-protest zone — which banned demonstrations of any sort within a certain distance of the clinics in an effort to cut down on streetside altercations — was a free speech infringement.
Zachary Heiden, ACLU of Maine legal director, said that case could weigh on the median strip case as well.
“We expect the appeals court will rule in favor of protecting free speech and uphold the lower court decision,” Heiden said Thursday. “The facts of the case remain the same, and since then, a Supreme Court ruling has made it even harder for municipalities to restrict free speech on sidewalks. I think that would apply to medians as well.”
