United States Court of Appeals 

For the First Circuit 

No. 14-1421 

MICHAEL W. CUTTING; WELLS STALEY-MAYS; and ALISON E. PRIOR, 

Plaintiffs, Appellees, 

v. 

CITY OF PORTLAND, MAINE, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, Senior U.S. District Judge] 

Before 

Howard, Chief Judge, 

Stahl and Barron, Circuit Judges. 

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. 

September 11, 2015 
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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. 

I. 

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 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 

 1 The First Amendment is incorporated into the Fourteenth 

Amendment and thus applies to the action at issue here. Gitlow v. 

New York, 268 U.S. 652, 666 (1925). 
- 3 - 

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 StaleyMays, and Alison E. Prior -- brought the present action claiming 

the ordinance restricted their speech in various ways.2 

 2 At oral argument in January, the parties agreed that the 

Supreme Court's ultimate disposition of the petition for 

certiorari that had been pending since October of 2014 in Thayer 

v. City of Worcester, 755 F.3d 60 (1st Cir. 2014) -- a case that 

involved a First Amendment challenge to a median ordinance similar 

to the one at issue here -- might bear on this case. Accordingly, 
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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 

 

we held this case in abeyance until June 2015, when the Supreme 

Court vacated our decision in Thayer and remanded for further 

consideration in light of Reed v. Town of Gilbert, 135 S. Ct. 2218 

(2015), see Thayer v. City of Worcester, ___ S. Ct. ___, 2015 WL 

2473458 (June 29, 2015), and that panel, in turn, remanded the 

entirety of Thayer to the district court. Thus, we now decide 

this case without regard to Thayer. 

3 The plaintiffs also brought suit under 42 U.S.C. § 1983, 

the Maine Civil Rights Act, and Article I of the Maine 

Constitution. 
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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 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. Asociación de Educación Privada de P.R., Inc. v. 

García-Padilla, 490 F.3d 1, 8 (1st Cir. 2007). 

II. 

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 
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restricts expression only because of where it occurs and thus 

without regard to its content.4

A. 

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 (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 

 4 Though styled as a restriction only on conduct (presence 

within a median strip), see United States v. O'Brien, 391 U.S. 

367, 377-78 (1968), the parties agree that the ordinance implicates 

the First Amendment. Indeed, the ordinance is similar to other 

laws that, though also aimed at restricting physical presence 

within a specified place, have been treated as restrictions on 

speech rather than merely conduct precisely because the laws 

necessarily prohibit persons from engaging in expressive activity 

in such places. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518 

(2014) (statute prohibited standing within 35 feet of any 

reproductive health care facility). 
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medians' "past uses," explaining that "the City's medians have 

routinely been the site of protected speech, including political 

protests, election campaigns by politicians, and solicitations by 

individuals for charity." Id. 

The two circuits that have addressed whether median 

strips are traditional public fora held similarly, see Warren v. 

Fairfax Cnty., 196 F.3d 186, 196-97 (4th Cir. 1999) (en banc); 

Satawa v. Macomb Cnty. Road Comm'n, 689 F.3d 506, 520-22 (6th Cir. 

2012), and the City makes no argument to us that its median strips 

are not traditional public fora. We thus decide this case on the 

understanding that, as the District Court found, the people of 

Portland have used median strips for expressive purposes in much 

the same way that they have used parks and sidewalks, as any 

argument to the contrary has been waived. 

B. 

The City's concession bears on the second threshold 

issue that we must address: whether this ordinance favors certain 

types of messages on the basis of their content. A restriction on 

speech that targets the content of the message conveyed is known 

as a "content-based" law. And when such a content-based law 

restricts speech in a traditional public forum, it raises a very 

serious concern that the government is using its power to tilt 

public debate in a direction of its choosing, a particularly 

worrisome form of governmental regulation of free expression. As 
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a result, such a law may be upheld only if that law uses the least 

speech restrictive means to serve what must be a compelling 

governmental interest. Globe Newspaper Co. v. Beacon Hill 

Architectural Comm'n, 100 F.3d 175, 182 (1st Cir. 1996).

We thus need to decide whether this ordinance is contentbased. For if the ordinance is not content-based, and the 

ordinance restricts speech without regard to the type of message 

communicated and only regulates the time, place, or manner of 

speech, then the ordinance is what is called "content-neutral." 

See id. at 183. Even though such a law might restrict a greater 

amount of expression in absolute terms than one that favors certain 

types of messages over others, it has the virtue of not singling 

out any idea or topic for favored or un-favored treatment. Thus, 

the government must show only that a restriction that is contentneutral is "narrowly tailored to serve a significant governmental 

interest, and that [it] leave[s] open ample alternative channels 

for communication of the information." Ward v. Rock Against 

Racism, 491 U.S. 781, 791 (1989) (citations omitted).5

 5 We follow the Supreme Court's lead in McCullen in 

determining whether the ordinance is content-neutral or contentbased, and therefore what level of scrutiny applies, even though 

we ultimately conclude that the ordinance fails under even the 

less rigorous level of scrutiny that applies to content-neutral 

laws. We take this approach because, as in McCullen, "there is no 

. . . reason to forgo the ordinary order of operations in this 

case." 134 S. Ct. at 2530. 
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Here, the District Court found from the evidence at trial 

that the City "favors one category of speech, campaign signs, over 

all others" because the City had adopted an "official 

interpretation" of the ordinance that exempts the posting of 

campaign signs from the ordinance's reach. Cutting, 2014 WL 

580155, at *6 n.5, 8-9.6 On that basis, the District Court 

determined that the ordinance was content-based, applied strict 

scrutiny, and struck the ordinance down facially. Id. at *9-11. 

But the District Court erred in following this course. 

To the extent that the District Court believed that the 

City's content-based "official interpretation" represented a 

construction of the ordinance's actual reach, the District Court 

erred in treating that construction as binding. For while we may 

read a law in light of the limits set forth in a government's 

"authoritative[] constru[ction]" of that law if doing so would 

"render [that law] constitutional," City of Lakewood v. Plain 

Dealer Publ’g Co., 486 U.S. 750, 770 n.11 (1988), consistent with 

the principle of constitutional avoidance, we may not do so to 

make that law more vulnerable to constitutional challenge, see 

McCullen v. Coakley, 571 F.3d 167, 178 (1st Cir. 2009) (McCullen 

I) ("[A] state official’s interpretation of a statute, even if 

 6 The City disputes this finding, but we need not resolve the 

question whether the City has in fact adopted such an "official 

interpretation." 
- 10 - 

generally authoritative, cannot render an otherwise constitutional 

statute vulnerable to a facial challenge."), overruled on other 

grounds, 134 S. Ct. 2518.7 Yet the District Court did just that 

by treating as binding what it claimed to be an "official 

interpretation" that was content-based. By doing so, the District 

Court made an ordinance that on its face appears to be 

content-neutral subject to the strictest form of constitutional 

review.8

 7 There is also a question whether the ordinance is even 

susceptible to a construction that permits the posting of signs 

only if they carry a campaign message. Even if, as the City 

contends, the words "stand" or "stay" in the ordinance could be 

construed narrowly to allow for the brief time needed for someone 

to post any sign on a median strip, it obviously takes no more 

time to post a sign with a campaign message than it does to post 

a sign that carries a different message. And the text of the 

ordinance does not mention signs at all, let alone only campaign 

signs. For the reasons set forth above, however, we have no need 

to decide whether the ordinance is susceptible to a construction 

that creates a campaign-sign-only carve-out. Cf. Virginia v. Am. 

Booksellers Ass'n, 484 U.S. 383, 396-97 (1988) (holding that in 

order for the Attorney General's savings construction of the 

statute to be binding the statute must be "readily susceptible" to 

that construction). 

8 To justify the decision to invalidate the ordinance on the 

basis of the City's supposedly content-based construction, the 

District Court relied on Forsyth Cnty. v. Nationalist Movement, 

505 U.S. 123 (1992). Cutting, 2014 WL 580155, at *5. But Forsyth 

considered the county’s view of the law only with the aim of 

identifying "narrowly drawn, reasonable and definite standards" 

that would constitutionally save the ordinance by rendering it 

less vague. Forsyth Cnty., 505 U.S. at 132-33 (quoting Niemotko 

v. Maryland, 340 U.S. 268, 271 (1951)). And so the Court did not 

rely on the county's view of the ordinance, as appellees contend, 

to invalidate the ordinance. Forsyth simply concluded that those 

standards were not sufficiently narrow, reasonable, or definite to 

save it. Id.; see also United States v. Grace, 461 U.S. 171, 176 
- 11 - 

To the extent that the District Court meant only that 

the City had adopted an unwritten policy regarding how the City 

would implement or enforce the ordinance with respect to campaign 

signs, the District Court still erred in striking the ordinance 

down facially as content-based. The principle of constitutional 

avoidance would counsel against that approach, too. See id. And 

if the City does have an official policy of enforcing the ordinance 

that permits the posting of campaign signs but no others in median 

strips, the proper remedy must target that policy or the 

enforcement of the ordinance pursuant to the policy. See Hoye v. 

City of Oakland, 653 F.3d 835, 848-49 (9th Cir. 2011) ("[I]t would 

make little sense to invalidate a statute that is constitutional 

as written when only its implementation is defective. Doing so 

would only require legislative bodies to undertake the pointless 

exercise of re-enacting laws that were perfectly valid as enacted 

on the first go around."). 

Thus, we set to one side any content-based "official 

interpretation" that may exist. And, having done so, we conclude 

that the ordinance restricts speech only on the basis of where 

such speech takes place. The ordinance does not take aim at -- or 

give special favor to -- any type of messages conveyed in such a 

 

(1983) (adopting the government’s interpretation of the law in 

question in an attempt to avoid constitutional difficulties, not 

to create them). 
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place because of what the message says. See Reed v. Town of 

Gilbert, 135 S. Ct. 2218, 2227 (2015) (discussing what is meant by 

the term "content-based"). As a result, we must decide the 

constitutionality of the ordinance on the understanding that it is 

content-neutral. 

III. 

Because the District Court deemed the law content-based, 

the District Court applied strict scrutiny. It thus did not decide 

whether the ordinance is narrowly tailored to serve a significant 

governmental interest. But no party asks us to remand the case 

for the District Court to rule on narrow tailoring in the first 

instance. 

The City does note that we may do so, but the City makes 

no argument that the record is insufficient for us to decide the 

question, or that the City would be prejudiced were it not 

permitted to develop the record further. The parties were in 

agreement before trial that the ordinance is content-neutral and 

that the crucial question was whether the ordinance survives narrow 

tailoring, and the parties prepared their cases accordingly. We 

thus address the question of narrow tailoring despite the fact 

that the District Court has not passed on it. 

The City asserts that the ordinance is narrowly tailored 

to serve the City's interest in protecting public safety. And we 

recognize that such an interest is a legitimate and significant 
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one, as the Court most recently recognized in McCullen. 134 S. 

Ct. at 2535. But before examining whether the ordinance is 

narrowly tailored to that interest, we need to say a little more 

about the doctrine of narrow tailoring. 

Outside the First Amendment context, the Court has 

stated that a litigant who brings a facial challenge to a statute 

must establish "that [there is] no set of circumstances . . . under 

which [the regulation] would be valid." United States v. Salerno, 

481 U.S. 739, 745 (1987). But a content-neutral restriction on 

speech in a traditional public forum is facially unconstitutional 

if it does not survive the narrow tailoring inquiry, even though 

that ordinance might seem to have a number of legitimate 

applications. See McCullen, 134 S. Ct. 2518 (striking down 

content-neutral, sidewalk buffer-zone law facially on narrow 

tailoring grounds). 

The reason is that the First Amendment interest in 

promoting free speech is so great that the government may not pass 

unnecessarily sweeping restrictions on speech and then force those 

burdened by them to challenge each problematic application. Thus, 

the seemingly tailored aspects of an untailored restriction on 

speech in a traditional public forum do not automatically save 

such a restriction from facial challenge. Id. at 2534 ("Where 

certain speech is associated with particular problems, silencing 

the speech is sometimes the path of least resistance. But by 
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demanding a close fit between ends and means, the tailoring 

requirement prevents the government from too readily sacrificing 

speech for efficiency." (internal quotation marks and brackets 

omitted)); see Richard H. Fallon, Jr., As-Applied and Facial 

Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1354 

(2000) (making a similar argument). 

That said, the narrow tailoring doctrine does not 

require perfect tailoring. The doctrine requires only that a 

challenged speech restriction not burden "substantially" more 

speech than is necessary to further the government's interest. 

See McGuire v. Reilly, 260 F.3d 36, 48 (1st Cir. 2001) (citing 

Ward, 491 U.S. at 799). 

We thus start our analysis by describing just how 

burdensome this ordinance is. We then consider whether the City's 

interest in protecting public safety justifies a restriction that 

is so burdensome. Finally, we consider whether there were less 

speech restrictive measures that the City bypassed in opting for 

this ban. In the end, we conclude that this ordinance cannot 

survive the narrow tailoring inquiry and must be invalidated on 

its face. 
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IV. 

There is no doubt that the ordinance imposes "serious 

burdens" on speech. See McCullen, 134 S. Ct. at 2535.9 As was 

the case with the law at issue in McCullen, this ordinance is 

"truly exceptional," as the City has failed to identify another 

median ordinance that is so encompassing. Id. at 2537.10 That is 

 9 Appellees also challenged the ordinance under the 

overbreadth doctrine, which permits plaintiffs to challenge a 

speech restriction facially even if the restriction does not 

restrict their speech or if the restriction is constitutional as 

applied to their own speech activities. See Virginia v. Hicks, 

539 U.S. 113, 119 (2003) (explaining that the overbreadth remedy 

is provided to a litigant whose own speech rights are not affected 

"out of concern that the threat of enforcement of an overbroad law 

may deter or 'chill' constitutionally protected speech" because 

"[m]any persons, rather than undertake the considerable burden 

(and sometimes risk) of vindicating their rights through 

case-by-case litigation, will choose simply to abstain from 

protected speech -- harming not only themselves but society as a 

whole"). But the City does not contend that we must consider the 

appellees' overbreadth challenge, and instead contends only that 

the ordinance should be upheld under the narrow tailoring doctrine. 

We therefore do not address whatever different analysis, if any, 

may be required under the overbreadth doctrine. See Marc E. 

Isserles, Overcoming Overbreadth: Facial Challenges and the Valid 

Rule Requirement, 48 Am. U. L. Rev. 359, 416-20 (1998); Richard H. 

Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 893-98 

(1991). 

10 In defending the broad reach of the median ordinance, the 

City argues that the weight of precedent in similar cases shows 

that its ordinance is not "beyond the pale with respect to 

time/place/manner restrictions." But the ordinances at issue in 

those cases were much less sweeping, either because the ordinances 

were less geographically encompassing, more targeted in the types 

of speech activity covered (often focusing solely on 

solicitation), or both. See Del Gallo v. Parent, 557 F.3d 58 (1st 

Cir. 2009) (rejecting a facial challenge to a U.S. Postal Service 

regulation restricting campaigning activity on post office 

sidewalks on the ground that the restriction was reasonable in 
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true in consequence of both the expressive activity that the 

ordinance covers and the broad definition of "median strip" that 

the ordinance employs. 

The ordinance prohibits virtually all activity on median 

strips and thus all speech on median strips, with a narrow 

exception only for speech that pedestrians may engage in while 

 

light of the history and purposes of the postal sidewalk); Gresham 

v. Peterson, 225 F.3d 899 (7th Cir. 2000) (holding that an 

Indianapolis ordinance that prohibited nighttime panhandling, all 

panhandling in specified areas, and all "aggressive panhandling" 

was narrowly tailored to serve the city's interests in promoting 

the safety and convenience of its citizens on public streets); 

ACORN v. St. Louis Cnty., 930 F.2d 591 (8th Cir. 1991) (upholding 

an ordinance banning solicitation in all roadways -- but not on 

medians -- as narrowly tailored to the county's safety concern); 

Davidovich v. City of San Diego, No. 11cv2675 WQH-NLS, 2011 WL 

6013010 (S.D. Cal. Dec. 1, 2011) (concluding that a municipal 

provision that prohibited the placing of objects on public grounds 

was narrowly tailored to the purpose of protecting public safety, 

maintaining public property, and ensuring that public space is 

free of obstructions); Johnson v. City & Cnty. Of Phila., No. 08-

cv-01748, 2010 WL 3768737 (E.D. Pa. Sept. 28, 2010), aff'd, 665 

F.3d 486 (3d Cir. 2011) (deeming an ordinance requiring a permit 

to post a temporary sign on a utility pole, streetlight, traffic 

sign, historical marker, or tree in the public right-of-way 

narrowly tailored to public safety and anti-blight goals). One of 

the cases that the City relies on, Reynolds v. Middleton, No. 12-

cv-00779-JAG, 2013 WL 5652493 (E.D. Va. Oct. 15, 2013), was 

recently overturned. See 779 F.3d 222 (4th Cir. 2014). There, 

the Fourth Circuit held that a county ordinance that prohibited 

soliciting in roadways and from medians was not narrowly tailored 

to the county’s interest in public safety. In so holding, the 

court found problematic the fact that the ordinance "applies to 

all County roads, regardless of location or traffic volume, and 

includes all medians, even wide medians and those beside traffic 

lights and stop signs." Id. at 231. The court also criticized 

the county for "prohibit[ing] all roadside leafleting and 

solicitation, even where those activities would not be dangerous." 

Id. 
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crossing the median strip in the course of crossing the street 

(and, perhaps, another one for pedestrians posting signs or engaged 

in activity that is similarly fleeting).11 In fact, it is hard to 

imagine a median strip ordinance that could ban more speech. See 

Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton, 

536 U.S. 150, 165 (2002) ("We must . . . look, . . . to the amount 

of speech covered by the ordinance and whether there is an 

appropriate balance between the affected speech and the 

governmental interests that the ordinance purports to serve."). 

It is also hard to imagine a median strip ordinance that 

could encompass more spaces within its definition. The ordinance 

restricts speech in all median strips in the entire City of 

Portland. And the actual "strips" range widely in terms of their 

size and character. In this way, the ordinance applies without 

regard to whether the term "strip" really is a plausible descriptor 

when applied to the median in question. 

To be sure, the ordinance applies to some very narrow 

strips of raised concrete between two lanes of traffic. These 

strips include the "eight-inch" strips that the City’s police chief 

raised concerns about before the City Council. But we know, from 

 11 We need not decide whether to read the ordinance in light 

of the City's proposed limiting instruction that "standing" and 

"staying" do not encompass the short time it takes to hammer a 

sign into the ground because such a construction would not affect 

our conclusion that the ordinance is not narrowly tailored. 
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the trial record, that not all of the median strips in Portland 

are eight inches wide. In fact, Chief Sauschuck acknowledged that 

most of the City's medians did not meet that description. 

The record also shows the ordinance encompasses -- by 

virtue of the definition used -- some considerably larger medians. 

The ordinance applies, for example, to medians that are roughly 

eight feet wide, and even to the grassy expanse on Franklin Street, 

which runs for several blocks and is as wide as fifty feet in 

various places. The ordinance also applies to Boothby Square, a 

wide, raised grassy median that contains a park bench, and possibly 

other medians that are sufficiently wide to permit pedestrians to 

stay far away from traffic, as appellees argued below.12 

What is more, the ordinance's broad definition of the 

term "median strip" does not purport to consider other important 

factors, such as pedestrian and vehicle traffic patterns on the 

surrounding sidewalks and roadways. And so it is expansive in 

that way, too. 

To be sure, Plaintiffs may be able to engage in their 

speech in places other than medians -- such as parks and sidewalks. 

 12 Chief Sauschuck initially disagreed at trial that the 

ordinance would apply to Boothby Square. He reasoned that Boothby 

Square constitutes a "city square," not a median. But he 

ultimately conceded that the square does in fact "match the 

[ordinance’s] definition of a median strip," and that the ordinance 

contains no language exempting city squares or other such areas. 
- 19 - 

But the fact that there are other places were plaintiffs may engage 

in their expressive activity "misses the point." McCullen, 134 S. 

Ct. at 2536. A flat ban on speech in a particular forum -- like 

the median ordinance at issue here -- can fail narrow tailoring 

even if it leaves open other channels for plaintiffs to engage in 

their expressive activity. And, in addition, plaintiffs "believe 

they can accomplish [their] objective" best if they are permitted 

to speak from traffic medians. Id. (considering the fact that 

plaintiffs' objectives were best served by speaking in buffer zones 

in concluding that the ordinance banning speech in those zones was 

not narrowly tailored). 

A protestor standing on a median with a double-sided 

sign may -- as appellee Wells Staley-Mays asserts, based on his 

own experience -- reach more people than he can standing on a 

sidewalk. And appellee Michael Cutting testified that there are 

"more interactions [with people] and acknowledgements on the 

median than from the sidewalk." According to Cutting, sidewalks 

also present obstacles to expression that medians do not: cars 

parked along sidewalks block drivers' views of him; storefronts 

and signs distract passersby from his message; and shop owners who 

line the sidewalks sometimes become agitated with his protest 

activities. In fact, appellee Alison Prior, who uses medians to 

panhandle, finds sidewalks so useless for her purposes that she 

now takes a bus to a different town in order to panhandle from 
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medians. Similarly, parks may not enable protesters like Cutting 

and Staley-Mays, and panhandlers like Prior, to be seen by people 

constantly moving past them in both directions. 

V. 

Notwithstanding the serious burdens on speech the 

ordinance imposes, we still need to decide whether the City's 

interest in public safety justifies such an all-encompassing ban. 

In the City’s view, the dangers -- to passersby as well as to those 

in the median strips -- are sufficiently present, no matter the 

activity (expressive or not) taking place on the median strip, and 

no matter the nature of the median strip on which such activity 

occurs. "[T]here simply is no way to abate the City's significant 

safety concern," the City says, "except for an outright ban." For 

that reason, the City contends, the ordinance does not ban 

substantially more speech than necessary, even though it bans 

nearly every activity on every median in the City. But neither 

the City's interest in protecting people in the streets nor its 

interest in protecting people on medians holds up as a 

justification for the ordinance. 

A. 

We start with the City's interest in eliminating the 

danger to drivers and other users of the streets, which was the 

City's focus when it enacted the bar to persons lingering in median 

strips. As described by Chief Sauschuck, who spearheaded the 
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effort to pass the ordinance, that danger does not apply to all 

median strips in Portland. Instead, the record shows that the 

danger the City identified applies to only a limited number of 

median strips. 

At trial, Chief Sauschuck agreed that "most of th[e] 

incidents" that citizens had called in "occurred at a handful of 

intersections" across the City. A map of the incidents, created 

by Chief Sauschuck and submitted as an exhibit at trial by 

plaintiffs, confirmed that they were indeed clustered around a few 

medians. And while Chief Sauschuck briefed the City Council on 

the dangers posed by individuals standing on "eight inch medians 

in the City of Portland," he conceded at trial that he did not 

know "exact measurements for any medians," that the eight-inch 

number he had used was "a pure guesstimate on [his] part," and 

that -- at least based on the exhibits shown to him at trial -- 

"probably most of the medians in town [are] wider than eight 

inches." 

Absent evidence about whether the City's other median 

strips present the same or a similar danger, we have no basis for 

concluding that a substantial number of them do. The ordinance is 

thus geographically over-inclusive with respect to the City's 

concern that people lingering in all of the City's median strips 

-- no matter which ones -- pose a danger to those passing by. Cf. 

McCullen, 134 S. Ct. at 2539 ("For a [congestion] problem shown to 
- 22 - 

arise only once a week in one city at one clinic, creating 35-foot 

buffer zones at every clinic across the Commonwealth is hardly a 

narrowly tailored solution."); Reynolds v. Middleton, 779 F.3d 

222, 231 (4th Cir. 2014) (striking down an ordinance that 

prohibited leafleting on all county roadways and medians where the 

evidence established "at most, a problem with roadway solicitation 

at busy intersections in the west end of the county"); Comite de 

Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 

936, 949 (9th Cir. 2011) (en banc) (invalidating a regulation 

prohibiting solicitation on "all streets and sidewalks in the City" 

in the absence of evidence supporting the existence of a threat to 

public safety and traffic flow posed by solicitation on all streets 

and sidewalks in the city). 

Moreover, the danger to drivers and other users of the 

streets that the City identified when it passed the ordinance was 

tied to concerns about disruptive and inattentive individuals on 

median strips. The record shows that the City was worried such 

median strip users were intentionally leaving the median strips to 

enter the roadway to accost passersby or stumbling -- often under 

the influence of alcohol or drugs -- into the roadway. Yet 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. 
- 23 - 

For example, Chief Sauschuck conceded that he could not 

"recount any public safety problem with" either "individuals 

holding political campaign signs on the median strip" or "political 

activists holding issue related signs on median strips."13 The 

trial record also shows that Chief Sauschuck was unaware of a 

single call to the police regarding a non-belligerent, nonintoxicated individual simply "stand[ing]" or "stay[ing]" in a 

median strip. He further admitted at trial that only "a pretty 

small number" of the hundreds of citizen complaints that the police 

department combed through before briefing the City Council in 2013 

did not concern either "drunk individuals stumbling off the median, 

persons standing in the middle of the roadway obstructing 

traffic[,] or individuals being belligerent or physically violent 

toward motorists or other pedestrians." 

For these reasons, the risk to passersby posed by 

allowing people to linger in median strips does not justify banning 

as much speech, in as many places, as the City chose to ban. Given 

this record, that risk is simply not posed in many of the medians 

or by much of the expressive activity to which the ordinance 

applies. 

 13 In light of this testimony, there is no basis for concluding 

that the general concern that presence in median strips is 

distracting justifies the broad reach of the ordinance. 
- 24 - 

B. 

Still, the City argues that the ordinance promotes 

public safety in another way, by ensuring that people are not on 

median strips and thus are not positioned to be hit by passing 

cars. With respect to this goal, the City says, quoting News & 

Sun-Sentinel Co. v. Cox, 702 F. Supp. 891, 900 (S.D. Fla. 1988), 

there is no need for either "towering intellect []or an expensive 

'expert' study to conclude that mixing pedestrians and temporarily 

stopped motor vehicles in the same space at the same time is 

dangerous." Id. (internal quotation marks omitted). The City 

thus argues that, as a matter of common sense, there is a 

sufficient public safety need to impose this broad ban because, as 

a City official argued at trial, "motor vehicles are deadly 

weapons" and if a vehicle travels from a lane of traffic onto a 

median, "a pedestrian doesn't stand a chance." 

To bolster this assertion, the City does offer two pieces 

of evidence. The City points to fourteen requests by the public 

that the City replace damaged signs in medians. And the City 

references three reports, over a four-year period, of cars veering 

off roads and into median strips, which the City found only after 

"really cull[ing] through the system looking for median related 

accident reports." 

But the City's evidence is of limited value. It is not 

clear that the fourteen damaged signs reported by the public were 
- 25 - 

in fact damaged by vehicles. The three reports of cars entering 

medians do prove the obvious proposition that cars sometimes veer 

off roads and hit medians. But one accident occurred at 1:10 a.m. 

Another occurred in treacherous winter conditions. And none 

actually involved pedestrians. The City even conceded at trial 

that, since 2008, there has been only one incident in which a 

driver hit a person on a median strip. In that incident, however, 

the driver hit a cyclist who was using the median strip to cross 

the road -- an activity not prohibited by the ordinance. 

Moreover, the City does not contest that Portland's 

median strips, as a group, are traditional public fora -- that is, 

that they are places that "time out of mind" have been "held in 

trust" for the public's use for assembly, communicating ideas, and 

discussing public questions. Hague, 307 U.S. at 515. As such, 

Portland's medians would seem to be -- as a class -- presumptively 

fit for the very activities that the City now contends are 

obviously dangerous. In fact, at trial, Michael Bobinsky, Director 

of Portland's Public Services Department, conceded that "there are 

medians in the city that are safe," and that there were at least 

"a few" that were "basically . . . island refuge[s]." 

In sum, we must consider the City's claim that it is 

obvious that all medians are unsafe in light of the limited number 

of median strips with which the City expressed concern when it 

passed the ordinance, and the wide array of median strips that are 
- 26 - 

subject to the ban. And, under that calculus, the ordinance is so 

sweeping that it does ban substantially more speech than necessary 

to serve the City’s interest in preventing people on medians from 

being hit by drivers. Or, at the least, we cannot conclude 

otherwise given that the City has not shown that the "island 

refuges" that it concedes do exist are so few or so unattractive 

that only an insubstantial amount of expressive activity would 

occur there. 

C. 

There remains the question whether there are any less 

restrictive means of accomplishing the City's concededly 

legitimate purpose of protecting public safety than the complete 

ban that the City chose to impose. But the City did not try -- or 

adequately explain why it did not try -- other, less speech 

restrictive means of addressing the safety concerns it identified. 

See McCullen, 134 S. Ct. at 2540 ("To meet the requirement of 

narrow tailoring, the government must demonstrate that alternative 

measures that burden substantially less speech would fail to 

achieve the government’s interests . . . ."). 

The City says that existing state and local laws that 

prohibit disruptive activity in roadways, such as prohibitions on 

obstruction of traffic, disorderly conduct, and abusive 

solicitation, "simply do not provide an adequate tool" because 

they are "reactive, rather than proactive, and require a police 
- 27 - 

officer to directly observe the illegal behavior . . . before 

taking action." For example, the City explains, "obstruction of 

traffic laws require a warning to issue first." 

But the limitations in such laws do not suffice to show 

the need for the sweeping ban that the City chose. Such a ban is 

obviously more efficient, but efficiency is not always a sufficient 

justification for the most restrictive option. See id. at 2534-35. 

A more modest potential solution not addressed by the City, for 

example, would have been to strike the warning requirements that 

those laws contain, so that those laws would not be so reactive in 

their operation. 

The City might also have considered an ordinance that 

focused more directly on the dangerous activities that were the 

source of initial concern, such as ordinances directed at public 

intoxication or belligerent behavior. Or it might have considered 

limiting activity on medians only at night, when the dark makes it 

more difficult for drivers to see, or during hazardous weather 

conditions, when slick roads increase the chances that a car will 

skid into a median. Nor did the City show that it contemplated 

and rejected as ineffective an ordinance limited to the few medians 

in Portland where the City had identified safety hazards in the 

past, an ordinance limited to the smallest or most dangerous 

medians, or even an ordinance with an exception for certain large 

park-like spaces -- like Boothby Square and the wide median on 
- 28 - 

Franklin Street -- where the City had not observed safety hazards 

but which are especially attractive sites for expressive activity. 

The City points out that it declined to extend the 

ordinance to "some intersection sidewalks," despite requests to do 

so from the public, "because the evidence did not indicate that 

the public safety danger was great in those locations." But the 

City's willingness to make that sensible, evidence-based 

limitation only underscores the point that tailoring is possible 

but was not fully considered, as Councilor Suslovic himself 

conceded at trial with respect to a number of these alternatives.14

"In short, the [City] has not shown that it seriously 

undertook to address the problem with less intrusive tools readily 

available to it." Id. at 2539. Instead, it "sacrific[ed] speech 

for efficiency," and, in doing so, failed to observe the "close 

fit between ends and means" that narrow tailoring demands. Id. at 

2534 (internal quotation marks omitted).15 

 14 Like the Court in McCullen, we do not "give our approval" 

to any of the alternatives we discuss. 134 S. Ct. at 2538 n.8. 

We merely suggest that such laws "could in principal constitute a 

permissible alternative." Id. Whether they would, in fact, be 

constitutionally valid would depend on a number of factors. 

15 Because the ordinance restricts substantially more speech 

than is necessary, and because there were less restrictive means 

of serving the City's significant interest in protecting the 

public, we do not need to address whether the ordinance leaves 

open ample alternative channels for communication. Nor do we 

address appellees' as-applied challenge, which has not been 

briefed on appeal. See McCullen, 134 S. Ct. at 2540 n.9. And 

while it is not evident that the median ordinance's restriction on 
- 29 - 

VI. 

 The City may have been motivated by a perfectly 

understandable desire to protect the public from the dangers posed 

by people lingering in median strips. But the City chose too 

sweeping a means of doing so, given the First Amendment interest 

in protecting the public's right to freedom of speech. Thus, the 

judgment of the District Court is affirmed. 

 

"park[ing]" and "driv[ing]" in a median strip is an 

unconstitutional restriction on speech, no party has asked us to 

sever the statute so as to save this restriction.