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Cutting v. City of Portland, Maine

United States Court of Appeals, First Circuit

September 11, 2015

CITY OF PORTLAND, MAINE, Defendant, Appellant


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Jennifer L. Thompson for appellant.

Kevin P. Martin, with whom Zachary Heiden, Joshua M. Daniels, Timothy Bazzle, Brian T. Burgess, ACLU of Maine Foundation, and Goodwin Procter LLP were on brief, for appellees.

Before Howard, Chief Judge, Stahl and Barron, Circuit Judges.


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BARRON, Circuit Judge.

This case requires us to decide whether an ordinance in the City of Portland, Maine that prohibits standing, sitting, staying, driving, or parking on median strips violates the constitutional guarantee of " the freedom of speech." U.S. Const. Amend. I.[1] We conclude that the ordinance does, 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. Accordingly, we affirm the District Court's permanent injunction barring the ordinance's enforcement.


In 2012, Portland's chief of police, Michael Sauschuck, identified an increase in panhandling on traffic medians in the City. Calling this increase a " public safety emergency," he recommended to the Public Safety, Health, and Human Services Committee of the Portland City Council that it adopt an ordinance barring virtually all

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activity in all of the City's median strips (other than just passing through).

The proposed ordinance failed to pass. Nonetheless, concern about panhandling in the City's median strips did not abate. And, in July of 2013, the Council held a public hearing to reconsider the proposed ordinance. This time the City Council unanimously voted to adopt the median ordinance.

Portland City Code § 25-17(b) became effective on August 15, 2013. The ordinance provides that:

No person shall stand, sit, stay, drive or park on a median strip . . . except that pedestrians may use median strips only in the course of crossing from one side of the street to the other.

The ordinance defines a median strip as " a paved or planted area of [a] public right-of-way, dividing a street or highway into lanes according to the direction of travel." Portland City Code § 25-118. The ordinance does not specify any other features of a median strip -- such as its size or its location relative to heavy or fast traffic. Nor does the ordinance restrict presence in the streets themselves.

The City has enforced the ordinance against just five people, in each case for panhandling. The City voluntarily stopped enforcing the ordinance when, on September 24, 2013, three individuals, now appellees -- Michael W. Cutting, Wells Staley-Mays, and Alison E. Prior -- brought the present action claiming the ordinance restricted their speech in various ways.[2]

The suit contends that Portland's median strip ordinance violates the First Amendment, both as applied and on its face.[3] The complaint seeks relief in the form of a declaratory judgment concerning the ordinance's facial unconstitutionality. The complaint also seeks a preliminary and permanent injunction prohibiting the City from enforcing the ordinance.

The District Court combined a hearing on plaintiffs' motion for a preliminary injunction with a trial on the merits. After receiving testimony and exhibits from the parties, the District Court issued a decision in plaintiffs' favor. See Cutting v. City of Portland, No. 13-cv-359-GZS, 2014 WL 580155 (D. Me. Feb. 12, 2014).

The District Court held that the median strips that the ordinance covered were traditional public fora, like sidewalks or parks. Id. at *7. The District Court then held that the City had adopted an " official interpretation" of the ordinance that excludes campaign signs from the ordinance's reach, thereby allowing signs bearing campaign messages to be posted in median strips but not signs communicating other messages. Id. at *6. On that basis, the District Court found that the ordinance discriminated on the basis of the content of the speech that occurs in the median strips, and so the District Court went on to ask whether the ordinance used the least

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speech restrictive means to serve a compelling governmental interest. Id. at *9-10. The District Court concluded that the ordinance could not survive such strict constitutional scrutiny. Id. at *10. The District Court therefore ruled that the ordinance was facially unconstitutional and permanently enjoined the City from enforcing the ordinance in any respect. Id. at *11.

The City now appeals. We review the District Court's grant of a permanent injunction for abuse of discretion, its underlying conclusions of law de novo, and any factual findings for clear error. Asociacion de Educacion Privada de P.R., Inc. v. Garcia-Padilla, 490 F.3d 1, 8 (1st Cir. 2007).


We need to address two issues at the outset. The first concerns how to characterize, for First Amendment purposes, the type of places -- median strips in Portland -- that the ordinance targets. The second concerns whether the ordinance favors the content of certain messages or whether the ordinance instead restricts expression only because of where it occurs and thus without regard to its content.[4]


The parties appear to agree that the City's median strips are what are known for First Amendment purposes as " traditional public fora." Those are places " held in trust for the use of the public . . . for purposes of assembly, communicating thoughts between citizens, and discussing public questions." See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Given the role such places historically have played in fostering public discussion and debate, the government's authority to regulate speech within such places is especially limited. Id. at 515-16.

The classic traditional public fora are parks and sidewalks. Id. The City disputed below whether Portland's median strips qualify as traditional public fora. But the District Court resolved that dispute in favor of the appellees. Cutting, 2014 WL 580155, at *7. The District Court based its decision on the medians' " past uses," explaining that " the City's medians have routinely been the site of protected speech, including political ...

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