PORTLAND, Maine — A federal appeals court on Friday struck down a city law banning panhandling on median strips, delivering another in a series of recent victories for free speech groups.
U.S. First Circuit Court Judge David J. Barron wrote in a decision issued Friday that Portland’s ordinance violates the First Amendment right to free speech “because it indiscriminately bans virtually all expressive activity in all of the city’s median strips and thus is not narrowly tailored to serve the city’s interest in protecting public safety.”
The ordinance was successfully challenged by the Maine chapter of the American Civil Liberties Union in U.S. District Court, prohibiting enforcement of the law. The city appealed the ruling to the First Circuit, where it lost Friday.
“This is a really important victory and not only for our clients who are in Portland but for activists around the country,” Zach Heiden, legal director of the Maine ACLU chapter, said. “We’ve seen more and more cities and towns using ordinances like this to try to keep people out of downtown areas, and this decision is a reminder that those people have First Amendment rights, too.”
Jessica Grondin, city spokeswoman, wrote in an email that the City Council is still reviewing the decision and will likely discuss the matter in executive session Sept. 21.
The First Circuit’s decision to uphold the lower court came with one legal distinction — it measured the ordinance against a less stringent standard that stood to benefit the city.
The District Court ruling threw out the city ordinance because it found the law effectively barred one type of speech — panhandling — while allowing campaign signs to proliferate on medians, a standard called strict scrutiny. Judge Barron disagreed, putting the law up to review against whether it served a specific government interest, or intermediate scrutiny.
Barron wrote the ordinance was overly broad, encompassing many types of property and types of speech.
“In fact, it is hard to imagine a median strip ordinance that could ban more speech,” Barron wrote about the ordinance that sought to ban standing, sitting, staying, driving or parking in median strips.
He found the city did not prove its case that the ordinance served a specific public safety interest.
“The trial record shows that plenty of people engage in expressive activities on median strips that the ordinance would ban but that do not pose the same threat to public safety that the city had identified,” Barron wrote.
Heiden said the decision gives direction to other municipalities trying to pass similar bans.
“[The municipality] has to prove that it’s a real problem and that the solution is really connected to that problem,” Heiden said.
The U.S. Supreme Court in July sent a similar ban in Worcester, Massachusetts, back to the First Circuit, citing a ruling that deemed a sign ordinance in Arizona unconstitutional.
Read Judge Barron’s decision below.