PUBLISH UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ CALVIN McCRAW; G. WAYNE MARSHALL; MARK FAULK; TRISTA WILSON; NEAL SCHINDLER; OKLAHOMA LIBERT ARIAN PARTY; RED DIRT REPORT, Plaintiffs - Appellants,

v. CITY OF OKLAHOMA CITY, an Oklahoma municipal corporation; WILLIAM CITTY, in his official capacity as Chief of the Oklahoma City Police Department, Defendants - Appellees. No. 19-6008 (D.C. No. 5:16-CV-00352-HE) (W.D. Okla.)

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:16-CV-00352-HE)

________________ _________________ Joseph Thai, Oklahoma City, Oklahoma (Erwin Chemerinsky, Berkeley, California; Ryan Kiesel, Brady Henderson, Megan La mbert, ACLU of Oklahoma Foundation, Oklahoma City, Oklahoma; Greg Beben, Legal Aid Services of Oklahoma, Inc., Oklahoma City, Oklahoma; and Micheal Sale m, Salem Law Offices, Norman, Oklahoma, with him on the briefs) Amanda Carpenter, Oklahoma City, Oklahoma (Kenneth Jo rdan, Municipal Counselor; Catherine Campbell, Phillips Murrah P.C., Okla homa City, Oklahoma , with her on the briefs)

________________ _________________ Before LUCERO , EBEL , and HARTZ , Circuit Judges. FILED United States Court of Appeals Tenth Circuit 

### August 31, 2020 Christopher M. Wolpert Clerk of Court2 ________________ _________________ LUCERO , Circuit Judge.

________________ _________________

This case concerns the First Amendment ri ghts of citizens in the public square— specifically on medians in public road s. Oklahoma City Ordinance 25,777 prohibits standing, sitting, or remaining for most purposes on certain medians. Okla. City, Okla., Code ch. 32, art. XIII, § 32-458. Plaintiffs are Oklahoma City residents, a minority political party in Oklahoma, and an independent news organization. They use medians to panhandle, engage in protests or other e xpressive activity, mount political campaigns, cover the news, or have persona l conversations. After they we re no longer able to engage in such activity due to the ordinance, plaintiffs sued Oklahoma City and its chief of police, William Citty, (together, “the City”) alleging violations of their First and Fourteenth Amendment rights. The district co urt dismissed plaintiff Trista Wilson’s First Amendment claim; granted summary judgment favoring the City on plaintiffs’ due process vagueness claims; and, following a bench trial, entered judgment against plaintiffs on all other claims. Exercising juri sdiction under 28 U.S.C. § 1291, we reverse the court’s entry of judgment favoring the Ci ty on plaintiffs’ First Amendment claims;

we reverse the dismissal of Wilson’s First Am endment claim; and we affirm on all other

claims.3 I

A As in many other cities, the medians in Ok lahoma City are varied and diverse. They range in length and width: some span an entire city block, others stretch down several car lengths at intersec tions. Many contain trails, side walks, benches, art, large signs, landscaping, or wide-open spaces. One even contains an operating fire station. In 2015, before the enactment of the ordinance at issue in this case, Oklahoma City’s municipal code prohibited pedestri ans from soliciting in roadways without a permit. Pedestrians could apply for a permit to walk from a median or sidewalk into the road to solicit, so long as they did not impede traffic and rema ined in the ro ad only when cars were stopped at traffic li ghts. Under this system, pol itical campaigns, panhandlers, and community fundraisers—including firefight ers engaged in their annual Fill the Boot campaign for the Muscular Dystrophy Association—enga ged in various activities on

medians. In December 2015, the Oklahoma City C ouncil further restricted pedestrian activity on medians. Ordinance 25,283 (“Original Ordinance”) prohibited standing, sitting, or staying on any porti on of a median either less than thirty feet wide or located

less than two hundred feet from an intersection. Okla. City, Okla., Ordinance 25,283 (Dec. 9, 2015). The ordinance eliminated the prior permit excep tion for soliciting in roadways, but it allowed access to medians for certain specified purposes, including access by public employees and for emergency uses. Before its passage, city officials and othe rs pointed to panhandlers as the impetus4 for the Original Ordinance. The ordinance’ s author cited complaints she had received from citizens and businesses regarding panhand ling and repeatedly described the Original Ordinance as addressing panhand ling. She also stated that her goal was “to help try to find a way to redirect the dollars that are going out windows” back to agencies that provide food and shelter. Before the Original Ordinanc e was introduced, the City’s municipal counselor informed C ity officials that the author was working on an ordinance to ban panhandling and soliciting on me dians; he recogniz ed the potential unconstitutionality of such a law. Later, at a public hearing regarding the ordinance two weeks after its introduction, the municipal counselor’s office contended it should be viewed as addressing public safety a nd was “not necessarily about panhandlers.” An assistant city attorney explained that people on medians, regardless of their activity, were in danger and that panhand ling would still be permitted on si dewalks and on the side of

the road. At the third and final council meeting re garding the ordinance, Chief Citty gave a presentation. The presentation was originally titled “Panhandler Presentation,” but by the time Chief Citty gave it, its name had been ch anged to “Median Safety Presentation.” It demonstrated that between January 10, 2010, and September 29, 2015, there were 39,833 collisions citywide. This included 16,358 acci dents resulting in injuries or fatalities, of which 76% occurred n ear intersections. However, it showed no pedestrian-related

accidents on medians. Chief Citty showed slides and photographs of dama ged medians and accidents in

which vehicles entered or crossed onto the me dian, but he offered no specific evidence of5 accidents involving pedestrians on medians. He stated that some of the accidents involved pedestrians but that he did not kn ow the precise number, adding that the number would not be “very high.” He also stated that much of th e damage to medians is caused by unreported accidents. According to Chief Citty, it had been th e police department’s position for several years that pedestrian activity on medians was dangerous because of pedestrians’ exposure to traffic moving in different directions. Th e City Council disagree d about whether these safety concerns justified the Original Ordi nance, but it passed by a seven-to-two vote. Plaintiffs sued, claiming that the Orig inal Ordinance violated their First and Fourteenth Amendment rights. The same month, the City Council amended the city’s Aggressive Panhandling Ordinanc e, Okla. City, Okla., Code ch. 30, art. XV, div. 2, § 30- 428 et seq., to expand existing panhandling- free zones and to create new ones. The ordinance included a ban on panhandling with in fifty feet of any mass transportation stop. In 2017, after the district court denied the City’s motion for summary judgment without prejudice, the City Co uncil revised the ordinance. Ordinance 25,777 (“Revised Ordinance”), amended the sec tion of the City’s municipal code entitled, “Standing, sitting, or staying on streets, highwa ys, or certain medians.” § 32-458. It outlawed pedestrian presence on medians in all streets with a speed lim it of forty miles per hour or more, but exempted government employees and pe ople on the median to cross the street, perform “legally authorized wo rk,” or “respond[] to any em ergency situation.” Id. The Revised Ordinance included findings, wi th citations to a Centers for Disease Control and Prevention (“CDC”) report listing higher vehicle speeds among risk factors6 for auto-pedestrian crashes and a Federa l Highway Administra tion publication with general statistics regarding the likelihood of fatality for a pede strian struck by a moving vehicle. Neither report addr essed medians in particular. The findings also noted that in 2015, pedestrian deaths accounted for 15% of all traffic fatalities; 90% of the pedestrian deaths were from crashes involving a single ve hicle; and 19% of pedestrian deaths were from crashes involving hit-and-run drivers. Without citation, the Revised Ordinance also concluded that people sitting, standing, or remaining on medians “create additional distractions for the operators of motor ve hicles using such streets and highways.” Before the Revised Ordinance was passed, an assistant city atto rney told the City Council that the City had conducted further re search to determine the highest risk factor for pedestrians who remained on medians for lo nger than necessary to cross the street. Based on National Highway Traffic Safety Ad ministration (“NHTSA”) statistics, the City determined that vehicles traveling at high spee ds caused the most ri sk. According to the NHTSA, the pedestrian fatality rate in accident s with vehicles traveling at forty miles per hour is 85%, compared to 45% for vehicles traveling at thir ty miles per hour and 5% for vehicles traveling at twenty miles per hour. The CDC similarly reported that vehicle speeds increased both the likelihood of pedest rians being struck by a motor vehicle and the severity of injury. The City solicited the opinion of Mast er Sergeant Brian Fowler, a fatality investigator for the Oklahoma City Police Department, who observed that in 2015 the Insurance Institute of Highway Safety reported that 54% of pedestrian deaths occurred on large, arterial roadways. He testified that median curbs offer “very minimal” protection7 when vehicles are traveling at higher speeds, that driver distractions cause pedestrians to be at higher risk, and that pedestrians on me dians cause distractions to drivers. Fowler and Chief Citty set forth a desc ending hierarchy of the riskiest places for pedestrians to be: (1) traffic lanes, (2) medians, and (3) ro adsides or sidewalks. Fowler also testified that he believed that the longer a pedestrian remained on a median, the greater the risk. He was unable, however, to quantify the risk or provide any support in safety literature for his opinion. In response to a request from plaintiffs for all accident reports involving medians or pedestrians, the City produced 504 repor ts dating from 2012 to 2017. No report involved a pedestrian struck on any median. Out of 39,833 accidents reported from 2010 to 2015, none involv ed pedestrians on medians. Further, at trial, the City could not identify anyone injured on a median in Ok lahoma City or any accident caused by pedestrian activity on a median . Moreover, Fowler admitted that he did not have any research or data to support his conclusi on that pedestrians remaining on medians in Oklahoma City are exposed to more risk. The Revised Ordinance prohibits pedest rians from being on approximately four hundred medians across Oklahoma City. 1 The City asserts that there are at least 103 medians unaffected by the ordinance because th ey are on roads with speed limits lower

1 The parties stipulated that a legal in tern personally verified the physical existence and location of each of the 406 medi ans on the list plainti ffs introduced at trial.8 than forty miles per hour. 2 Plaintiffs respond that at le ast 27 of these 103 medians are unavailable to panhandlers and solicitors under the Aggressive Panhandling Ordinance because they are within fi fty feet of a bus stop. 3

B Plaintiffs are individuals and organizati ons whose use of the medians has been barred by the Revised Ordinance. Mark Faulk, the chair of the Oklahoma County Democratic Party and a former state legisla tive candidate, has held campaign signs and taken part in political protests on affected medians. The Ok lahoma Libertarian Party has used medians to garner signatures for petitions and to spread its message. Red Dirt Report is a central Oklahoma online daily periodical that uses medians to cover breaking news. Calvin McCraw and G. Wayne Mars hall panhandle on medians to pay for food, shelter, medicine, and other necessities. McCraw has also stood on medians to distribute The Curbside Chronicle, a street newspaper.

2 The parties dispute the application of the Revised Ordinance to the medians along Lincoln Boulevard, whic h is also State Highway 0. The district court concluded that because the Lincoln Boulevard medians were under the direct control of the State, not the City, th ey were unaffected by the ordina nce. Plaintiffs argue that the City maintains control of the Lincoln Boulevard medians beca use it has municipal jurisdiction to “[r]egulate and control the use of streets, roads and other public ways within the limits of the m unicipality,” Okla. Stat. tit. 11, art. XXXVI, § 36-101(1), further evidenced by the fact that it grants a right-o f-way along Lincoln Boulevard and its medians for the annual Oklahoma City Memorial Marathon. Because it is not dispositive of our analysis, we note the dis pute but do not decide whether the Revised Ordinance applies to Lincol n Boulevard’s medians.

3 Plaintiffs do not address whether any of the remaining 76 unaffected medians would be unavailable to panhandlers unde r other provisions of the Aggressive Panhandling Ordinance.9 Trista Wilson and Neal Schind ler use the medians when th ey run. Wilson stops on

medians to converse with he r jogging companions. Schindler celebrates life and honors those who died in the Oklahoma City bomb ing by running on medians while training for the Oklahoma City Memorial Marathon. After passage of the Revised Ordinance, pl aintiffs added claims alleging the new law violated their constitutional rights. Th e district court dismissed their claims challenging the Original Ordinance as m oot. It also dismissed Wilson’s First Amendment claim, concluding that she ha d not alleged that the Revised Ordinance impinged on protected expression. On summ ary judgment, the court rejected plaintiffs’ Fourteenth Amendment vagueness challenge, holding that the Revised Ordinance’s definition of “emergency” did not rende r the ordinance unco nstitutionally vague. Following a bench trial with liv e witnesses and deposition desi gnations, the district court rejected the remaining claims. It concluded that “a substan tial number of medians subject to the Ordinance qualify as traditional public fora,” but the Revised Ordinance was a valid time, place, and manner restriction under the First Amendm ent because it was narrowly tailored and provided ample alternativ e channels of commun ication. It also rejected plaintiffs’ Fourteenth Amendment due process claim, concluding that there was no fundamental right to intrastate freedom of movement and that the Revised Ordinance passed rational basis review. Plaintiffs appealed.

II “In a First Amendment case, we have an obligation to make an independent

examination of the whole reco rd in order to make sure that the judgment does not10 constitute a forbidden intrusion on the field of free expression.” Citizens for Peace in Space v. City of Colo. Sp rings, 477 F.3d 1212, 1219 (10th Cir. 2007) (quotation omitted). 4 We therefore “review the district court’ s findings of fact a nd its conclusions of

law de novo” and “without deference to the tria l court.” Id. (quotation omitted). We also review de novo the court’s legal conclusion s regarding plaintiffs’ due process claims. See McClure v. Ind. Sch. Dist. No. 16, 228 F.3d 1205, 1212 (10th Cir. 2000).

A

Because it concluded the Re vised Ordinance was a cons titutionally permitted time, place, and manner restriction, the district court entered judgment for the City on plaintiffs’ First Amendment claims. The First Amendment, applicable to the States under

the Due Process Clause of th e Fourteenth Amendment, prov ides that “Congress shall make no law . . . abridging the freedom of spee ch, . . . or the right of the people peaceably to assemble, and to petition the Government fo r a redress of grievan ces.” U.S. Const. amend. I; see also iMatter Utah v. Njord, 774 F.3d 1258 , 1263 (10th Cir. 2014). “To

demonstrate a violation of their First Amendm ent rights, Plaintiffs must first establish that their activities are protect ed by the First Amendment. If so, a court must identify whether the challenged restrictions affect a pu blic or nonpublic foru m; that determination dictates the extent to which the governme nt can restrict First Amendment activities

4 Pursuant to our obligation, we have re viewed the entire r ecord and base our analysis and conclusions on our review. Ho wever, we note that this obligation does not excuse the parties from their require ment under Federal Rule of Appellate Procedure 28 to cite to the “par ts of the record on which [they] rel[y] . . . .” Fed. R. App. P. 28(a)(8)(A), (b).11 within the forum. Finally, courts must dete rmine whether the proffered justifications for prohibiting speech in th e forum satisfy the requisite sta ndard of review.” Verlo v. Martinez, 820 F.3d 1113, 1128 (1 0th Cir. 2016) (citations omitted).

B We agree with the district court that all plaintiffs whose claims proceeded to trial engaged in protected speech. See McCullen v. Coakley, 573 U.S. 464, 488-89 (2014) (leafletting and communicating ideas in nor mal conversation protected First Amendment activity); Morse v. Frederick, 551 U.S. 393, 403 ( 2007) (political speech “at the core of” the First Amendment); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988) (solicitation of charitable contributions is protected speech); Edenfield v. Fane, 507 U.S. 761, 767 (1993) (commercial speech prot ected under First Amendment); Heffron v. Int’l Soc’y for Kris hna Consciousness, Inc., 452 U. S. 640, 647 (1981) (First Amendment protection of newspaper distributi on not lost merely because the paper being distributed is sold, rather th an given away); Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972) (news gathering protected by First Amen dment); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (First Amendment pr otects distribution and publication of newspapers); Speet v. Schuette, 726 F.3d 867, 878 (6th Cir. 2013) (holding “that begging, or the soliciting of alms, is a fo rm of solicitation that the First Amendment protects”); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 ( 11th Cir. 1999) (“Like other charitable solicitation, begging is speech entitled to Fi rst Amendment protection.”); Loper v. N.Y.C. Police Dep’t, 999 F.2d 699, 704 (2d Cir. 1993) (“Begging frequently is accompanied by speech indicati ng the need for food, shelte r, clothing, medical care or12 transportation. Even without particularized speech, however, the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need fo r support and assistance.”); Clark v. Comm’y for Creative Non-Violence, 468 U.S. 288, 304 (1984) (“In a long line of ca ses, this Court has afforded First Amendment protection to expressive cond uct that qualifies as symbolic speech.”). We turn to Wilson, whose claim the distri ct court dismissed as lying outside First Amendment protection. Wilson alleged th at she was an “avid jogger” who ran throughout Oklahoma City, including on medi ans covered by the Original and Revised

Ordinances. Because it determined that W ilson had not alleged fact s demonstrating that her jogging was expressive activity, the distri ct court concluded she had not alleged that she was engaged in any protected speech as contemplated by the First Amendment. We agree that Wilson has not alleged facts demo nstrating that her j ogging was expressive activity. However, Wilson also alleged that she e ngaged in communicative activities while out on a run—allegations the dist rict court appears to have disregarded. Specifically, she described stopping on medi ans to have personal conv ersations with her jogging companions. Even t hough these conversations may not amount to grand rhetoric or political soapbox oratory, they are nonetheless protected by the First Amendment. “Most of what we say to one another lacks re ligious, political, scientific, educational, journalistic, historical, or artistic value (let alone serious value), but it is still sheltered from government regulation.” United States v. Stevens, 559 U.S. 460, 479 (2010) (quotation and alteration omitted) ; see also Capitol Square Review & Advisory Bd. v.13 Pinette, 515 U.S. 753, 760 ( 1995) (private expression “fu lly protected under the Free Speech Clause”); Connick v. Myers, 461 U.S. 138, 147 (1983) (spe ech on private matters

not within “one of the narrow and well-defi ned classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction”); Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 413 (1979) (“We are unable to agre e that private expression of one’s views is beyond constitutional protection . . . .”); Eich enlaub v. Twp. of I ndiana, 385 F.3d 274, 284 (3d Cir. 2004) (“[W]hile speech on to pics of public conc ern may stand on the ‘highest rung’ on the ladder of the First Am endment, private speech (unless obscene or fighting words or the like) is still pr otected on the First Amendment ladder.”). The City’s argument that Wilson’s comm unicative activities are “incidental” to her jogging and do not merit First Amendmen t protection is merely an attempt to minimize Wilson’s protected speech to such a degree that it is extinguished. Wilson’s

communicative activities are di stinct from her jogging and th erefore subject to the normal constitutional inquiry. Her speech does not lose protection either because she is simultaneously engaged in non-expressive ac tivity or because the City has deemed Wilson’s speech valueless. After all, it woul d be a boring day if ru nners would be denied the lingua franca of athletes in training. Accordingly, we reverse the dismissal of

Wilson’s First Amendment claim. 5

5 Although the district court dismis sed Wilson’s claim prior to summary judgment and trial, Wilson submitted an affidavit and designated deposition in support of the remaining plai ntiffs’ case. She thus had a full and fair opportunity to14 C Under the First Amendment, the extent to which the government may regulate access to public property depends on the category of forum in to which the property falls: “the traditional public forum, the designated public forum, and the nonpublic forum.” Verlo, 820 F.3d at 1129. Traditional public fora are those that “by long tradition or by government fiat have been devoted to assembly and debate . . . .” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 , 45 (1983); McCullen, 573 U.S. at 476 (traditional public fora are areas that “h ave been used for purposes of assembly, communicating thoughts between citizens, and di scussing public questions”). In contrast, designated public fora “are not generally open to the public for Fi rst Amendment activity and are created by purposeful governmental action to allow speech activity.” Evans v. Sandy City, 944 F.3d 8 47, 853 (10th Cir. 2019) (quotatio n omitted). All other fora are nonpublic. Id. To determine whether a particular proper ty is a traditional public forum, we look at “the objective characteristics of the proper ty, such as whether, by long tradition or by government fiat, the property has been devote d to assembly and debate.” Ark. Educ.

Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998) (quo tation omitted). We conclude that Oklahoma City’s medians fall w ithin this category. Objectively, medians

share fundamental characteristic s with public streets, sidewa lks, and parks, which are quintessential public fora. S ee Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473

present her claim and we do not have any concerns in ad judging her claim along with those of the remaining plaintiffs.15 U.S. 788, 802 (1985); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (Roberts, J., concurring) (“Wh erever the title of streets a nd parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions . . . .”); United States v. Grace, 461 U.S. 171, 179 (1983) (“Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, genera lly without further inqu iry, to be public forum property.”). Many median s in Oklahoma City, particul arly those at intersections, contain sidewalks. “The typical traditiona l public forum is property which has the physical characteristics of a public thoroughf are, . . . [and] which has the objective use and purpose of open public access or some other objective use and purpose inherently compatible with expressive conduct.” Warre n v. Fairfax Cty., 196 F.3d 186, 191 (4th Cir. 1999) (en banc) (addendum to majority opinion) (citation omitted). Medians share with streets and sidewalks the physical ch aracteristics of public thoroughfares. Moreover, medians are sandwiched by the un contested public fora of streets and sidewalks. In Grace, the Supreme Court fo und persuasive the l ack of a demarcation between areas traditionally perceived as traditi onal public fora and those the government sought to treat as non-public fora. 461 U.S. at 179-80 (“There is no separation, no fence, and no indication whatever to pe rsons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.”). We similarly decline to car ve out a distinction be tween public streets—16 “the archetype of a traditional public forum, ” Frisby v. Schultz, 48 7 U.S. 474, 480-81 (1988)—and the medians that lie in the middle of and are surro unded by those streets. If

the road that abuts a median on both sides is a public fo rum, the median itself also qualifies. The City highlights what it characte rizes as differences between these quintessential public fora and medians, c iting the speed and volume of passing cars, among other characteristics. 6 These assertions may support the argument that a time, place, and manner restriction is constitutional. See, e.g., Co x v. Louisiana, 379 U.S. 536, 554, (1965) (rejecting conten tion that someone could, “cont rary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly ”). But ample precedent hold s that these characteristics do not deprive public streets of their status as public fora. See Frisby, 487 U.S. at 481 (noting that the “character of those streets ma y well inform the application of the relevant test, but it does not lead to a different te st”); Warren, 196 F.3d at 195 (addendum to majority opinion) (“The test is not whether the property was designed for expressive activity, but whether the objective uses and pur poses of the property are compatible with the wide measure of expressive conduct ch aracterizing public fora.”). Moreover, “[n]o particularized inquiry into the precise nature of a specific street is necessary; all public

6 The City also argues that its medians lack benches, sidewalks, trails, or other amenities that would render them similar to parks. Although the record shows many medians with those amenities, albeit on str eets with lower speed limits, the City’s distinction does not account for the similari ties between medians and the streets in which they lie.17 streets are held in the public trust and are properly considered traditional public fora.” Frisby, 487 U.S. at 481. Because the proximity, speed, and volume of passing cars does not deprive streets of their status as public fora, they similarly fa il to strip medians of that status—after all, streets are also not intended to have people in them most of the time. We reiterate: if the street in which those cars are moving is a traditi onal public forum, so too is the median in

the center of that street. See Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d 506, 520 (6th Cir. 2012) (holding that given public us e for expressive purposes, even a median “in the middle of a busy eight-lane road, with a fifty mile-per-hour speed limit . . . [o]n balance, . . . [was] a tr aditional public forum”). Perhaps more significantly, the record demonstrates a “long tradition” of expressive activity occurring on Oklahoma City’s medians. The record is replete with examples of speech occurring on medians, from firefighter charity drives to protests to political campaign signs. Testimony demonstrat ed that these activi ties have occurred for a long time, with plaintiffs stating that the firefighters used medians “[a]s long as I can remember;” that political signs were erected on me dians for “probably 40 years” and had “gone on forever;” and that people had stood on medi ans on Election Day since the early 1970s. The City attempts to minimize this tradition of expressive activity by distinguishing between use for expressive activity “for year s,” and use “for time out of mind.” We decline to specify the precise number of years it take s to create a “long tradition” of expressive activity. Suffice it to say that testimony that such expression has occurred for as long as witnesses can reme mber is enough evidence of tradition.18 The City responds that it neither intended to create a public forum for expression, nor invited the public to use the medians fo r expression. Although these considerations are not irrelevant, we note that the question put to us is “whether, by long tradition or by government fiat, the property has been devote d to assembly and debate.” Ark. Educ. Television Comm’n, 523 U.S. at 677 (quotation omitted a nd emphasis added). “It is only with respect to designated fora that the Su preme Court’s forum analysis has focused on whether there has been purposeful governme nt action creating a forum in a place not traditionally open to assembly and debate.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F. 3d 1114, 1124 (10th Cir. 20 02) (quotation omitted). For property that has traditionally been open to the public, a la ck of government fiat is not dispositive. Rather, “objective characteris tics are more important and can override express government intent to lim it speech.” Id. at 1125. Further, the Oklahoma City Municipal Co de itself defines streets to include medians. Okla. City, Okla. Code ch. 32, ar t. I §§ 32-1(29), (59). And under Oklahoma law, “[t]he title to streets, roads and public ways within the limits of a municipality which

have been dedicated and acc epted by the municipal gove rning body is held by the municipality in trust for public use and enj oyment.” Okla. Stat. tit. 11, art. XXXVI, § 36- 101. The City cannot now remove medians’ public fora status by fiat. See First Unitarian Church, 308 F.3d at1124 (“The government cannot simply declare the First Amendment status of property regardless of its nature and its public use.”). Just as the government may not “transform the characte r of the property by the expedient of including it within the statutory definition of what might be considered a non-public19 forum parcel of property,” it similarly may not ignore an existing statutory provision defining medians as streets, which are consider ed a public forum. See Grace, 461 U.S. at 180 (government’s “ipse dixit” does not determine the First Amendment status of property). The evidence overwhelmingly demons trates that in Okla homa City, medians have traditionally been used for expressive activity. We hold that Oklahoma City’s me dians are traditional public fora. 7 See Reynolds, 779 F.3d at 225 (“There is . . . no question that public streets and medians qualify as traditional public for[a].”); see also Cutting v. City of Portla nd, 802 F.3d 79, 83 (1st Cir. 2015) (holding that Portland’s medians were tr aditional public fora “on the understanding that . . . the people of Portland have used me dian strips for expressive purposes in much the same way that they have used parks and sidewalks”); Ater v. Armstrong, 961 F.2d 1224, 1226-27 (6th Cir. 1992) (in a challenge to a restriction from distributing literature on medians and streets, analyzi ng medians and streets together to hold that the county’s streets were traditional public fora).

D Having concluded that medians are pu blic fora, we analyze the Revised Ordinance’s validity under the time, place, and manner frame work. “It is well-settled that even in a public foru m the government may impose re asonable restrictions on the

7 We declined to answer this que stion in Evans because it was not determinative. Sandy City’s ordinance was a valid time, place, or manner regulation and therefore met the requirements for a law restricting speech even in a public forum. 944 F.3d at 853-54. In this case , however, we squarely address the question because the character of the forum a ffects the remainder of our analysis.20 time, place, and manner of protected speech , provided the restri ctions are justified

without reference to the conten t of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative

channels for communication of informatio n.” Evans, 944 F.3d at 854 (quotation omitted). Plaintiffs argue that we sh ould apply strict scrutiny be cause the Revised Ordinance

discriminates based on content. We need not reach this ar gument. As discussed below, we ultimately conclude the Revi sed Ordinance fails even inte rmediate scrutiny. Because it would necessarily also fail st rict scrutiny, we assume for the purposes of our analysis

that the Revised Ordinance is content-neutral. 8 See Reed, 135 S. Ct. at 2229-31 (describing the differences in standards applied to conten t-based and content-neutral regulations).

8 Our independent examination of the record reveals troubling evidence of animus against panhandlers in the passage of the Original and Revised Ordinances. But because we conclude that the City’s Revised Ordinan ce fails even intermediate scrutiny, we are not required to delve into wh ether its ostensible content-neutrality is instead camouflage for the City ’s desire to sacrifice speech in order to ban unpopular panhandling. See McCullen, 573 U.S. at 486 (“Where certain sp eech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demanding a close fit between ends and means, the tailoring requirement prevents the government fro m too readily sacrificing speech for efficiency.” (quotation and alteration omitted )); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (facially c ontent-neutral restrictions “w ill be considered contentbased regulations of speech” if they “w ere adopted by the government because of disagreement with the message the sp eech conveys” (quotation and alteration omitted)); see also Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Do ctrine, 63 U. Chi. L. Rev. 413, 451-52 (1996).21 1 “For a content-neutral time, place, or mann er regulation to be narrowly tailored, it must not burden substantially mo re speech than is necessary to further the government’s legitimate interests.” McCullen, 573 U.S. at 486 (quotation omitted). Although the City is not required to show that its regulation is the least restrictive means of promoting its interest, see Ward v. Rock Against Ra cism, 491 U.S. 781, 798 (1989), this burden ensures that restrictions on speech are not permitted when either the harms or the remedial effects of the government’s restri ctions are supported only by speculation or conjecture, or when the regula tion burdens substantially more speech than is necessary to further the government’s legitimate interest s. See Edenfield, 507 U.S. at 770-71. 9

In order to assess whether the Revised Ordinance is narrowly tailored, we must measure it against the City’s asse rted interest. The City claims that it passed the Revised Ordinance to “protect pedestrians on median s from encroaching traffic, and drivers from distractions caused by pedestrians on medians.” 10 When we apply “our special standard

9 Although Edenfield, as well as Aptive Environmen tal, LLC v. Town of Castle Rock, __ F.3d __, 2020 WL 25039 12 (10th Cir. May 15, 2020), which we address infra, dealt with re strictions on commercial speech , we have recognized that “[t]he validity of time, pla ce, and manner restrictions is determined under a standard essentially identical to that governing the regulation of commercial sp eech.” Citizens for Peace in Space, 477 F.3d at 1220 n.3; see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (recognizi ng “substantial similar[ity]” of the two tests). As a result, we have applied commercial spee ch precedent when an alyzing time, place, and manner restrictions. See, e.g., Citi zens for Peace in Space, 477 F.3d at 1220.

10 Although a government’s inte rest in public safety is clearly significant, see McCullen, 573 U.S. at 486, it is not e nough for the City to use broad safety justifications. Rather, “to as sess whether a restriction is an appropriate ‘fit’ to some22 of de novo review” and evaluate the record as a whole to ensure that a “forbidden intrusion on the field of free expression” ha s not occurred, Citizen s for Peace in Space, 477 F.3d at 1219-20, we conclude that the City has not met its burden to show that its recited harms are real, see Aptive Env tl., 2020 WL 25039 12 at *19.

When we examine the evid ence the City offers in support of the Revised Ordinance, we conclude that the City’s evid ence is insufficient to demonstrate that the City’s “recited harms are real” or that the Re vised Ordinance “will in fact alleviate these harms in a direct and material way.” Citiz ens for Peace in Space, 477 F.3d at 1221. 11 Critically, this record is devoid of eviden ce that accidents in volving vehicles and

important government interest, it is n ecessary that the government interest be specifically defined.” C itizens for Peace in Space, 477 F.3d at 1221, 1223. “Otherwise, the narrowly tailored analysis more closely resembles the ‘reasonably necessary’ standard used in reviewing restrictions on sp eech in areas that are not public forums.” Id. “[T] he question of narrow tailoring must be decided against the backdrop of the harms that a particular set of [responsiv e] measures are designed to forfend.” Id. As a result, “the burden falls on the City to show that its ‘recited harms are real . . . and that the re gulation will in fact alleviate these harms in a direct and material way.’” Id. at 1221 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)). As we explained in Aptiv e Environmental, th ese requirements are critical to prevent restric tions on speech designed to a dvance other interests that would not on their own justify the burden on expression. 2020 WL 2503912, at *18 (citing Rubin v. Coors Brewing Co ., 514 U.S. 476, 48 7 (1995)).

11 The City has provided ample evid ence of citizen complaints about panhandling across the City, in cluding instances of panha ndlers stepping into the streets, but these complain ts do not meet the City’s burden. The City must demonstrate that its articulat ed interest of “protect[ing] pedestrians on medians from encroaching traffic, and drivers from distra ctions caused by pedestrians on medians,” is concrete and non-speculativ e. See id. It cannot m eet this burden by proffering only evidence that there are panhandlers on medians or that those panhandlers are unpopular without showing that panhandlers in medians crea te a public safety risk.23 pedestrians on medians in Oklahoma City is an actual issue, as oppos ed to a hypothetical concern. There is neither evidence of any accident involving a pedestrian on a median, fatal or not, nor evidence that a pedestrian on a median caused an accident or distracted a driver enough to compromise the safety of the pedestrian or the driver. 12 Further, although city officials identified pedestrian presence on medians as one of their highest concerns, they we re unable to identify any accidents in which a pedestrian

on a median was involved. Fowler testified th at in his career, he had seen “a couple hundred” vehicles on medians, although he could neither identify any data, reports, or other evidence to support that estimate, nor describe any involvement of pedestrians in these anecdotes. Even if, as th e City asserts, there is an in creasing number of pedestrians on medians, there is no objective evidence that these pedestrians are getting hurt or hurting others. If medians present the danger th at the City argues th ey do, we are baffled as to why there is no “impersonal hard evid ence” of harm arising from their presence. See Aptive Envtl., 2020 WL 2503912, at *27 (Hartz, J., c oncurring) (recognizing that “when a law is justified as a protection of health or safety,” it can “be measured by impersonal ‘hard’ evidence”). In contrast, plaintiffs, who apparently spend significantly more time on medians

12 The City points to testimony by Chief Ci tty and Fowler that they have seen car tracks on medians, but these marks do not demonstr ate that a pedestrian was present when the marks were created. Further, even evid ence of one or a very limited number of such accidents over an extended peri od of time might not rise to the level of evidence necessary to subs tantiate the government’s interest in enacting this particular ordinance. Because there is no evidence of any such accident, we need not, and do not, speculate where the th reshold of materiality might lie.24 than do any city officials, presented evidence demonstra ting that they feel safer on medians than on sidewalks. They testified that cars move slowly at the portions of medians on which they stand. They also testified that thei r chosen medians are wide and protect them from encroaching cars. Drivers testified that they were more aware and drove more safely both when approaching inte rsections—where plaintiffs are more likely to stand—and when around pedestrians on median s. And the City’s chief traffic engineer testified that there is a “safety zone” for pe destrians eighteen inches beyond a curb that gives a driver adequate time to regain control of a vehicle after hitting the curb. There is also evidence that most pedest rian fatalities occur at “mid -block” locations—but again, not on medians—whereas plaintiffs testified they prefer to st and at the ends of medians,

close to intersections. The City contends that the government is entitled to prevent anticipated harms and that its predictive judgments are entitled to substa ntial deference. It further argues that it may rely on reasonable inferences drawn from substantial evidence to support its legislative conclusions and th at it may rely on common se nse rather than empirical studies or data to support its assessment of th e harm. It is true that municipalities remain free to determine what type of evidence th ey will use to support proposed remedial regulations, and there is no constitutional requi rement that governments “compile data or statistics” in particular. Evans, 944 F. 3d at 858; see also Aptive Envtl., 2020 WL 2503912, at *19 (recognizing that the Suprem e Court has not “require[d] that empirical data come accompanied by a su rfeit of background informati on,” but rather has allowed reference to studies, anecdotes, history, c onsensus, and common sense to support a25 municipality’s regulation (quo tation and alteration omitted)). We further acknowledge that a government need not wait for accidents or fatalities to address its interest through safety regulations. See Evans, 944 F.3d at 858. Nevertheless, the City’s prerogative to de termine how to support a regulation does not extinguish its burden “to show that its re cited harms are real.” See Citizens for Peace in Space, 477 F.3d at 1221. The evidence in this record does not meet that burden. Moreover, when evaluating the sufficiency of the municipality ’s evidence, regardless of form, we evaluate that eviden ce “in light of the cases where those categories of evidence have previously been invoked.” See, e.g., Aptive Envtl., 2020 WL 2503912, at *19, *21 (holding Castle Rock’s anecdotal and “c ommon sense” evidence to be “woefully insufficient” when comp ared to similar evidence held su fficient in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)). The City’s evidence does not stand up to this review. Compare Evans, 944 F.3d at 854-55 (noting that the ordinance was supported by “several

close calls where accidents in volving pedestrians and ve hicles could have been devastating” and city officials had personall y surveyed the relative safety of medians (quotation and alteration omitte d)) with Aptive Envtl., 20 20 WL 2503912, at *21 (deeming Castle Rock’s evid ence “woefully insufficient” because “Castle Rock has provided us no studies, no supportive eviden ce-based findings, and no survey results” and “there [wa]s no evidence that commercial solicitors are the source of any public-safety problems”). We therefore conclude that th e City has not met its burden to demonstrate that its interest is based on a concrete, non- speculative harm. See Citizens for Peace in Space, 477 F.3d at 1221; Go lan v. Holder, 609 F.3d 1 076, 1084 (10th Cir. 2010)26 (Regulations “must be directed at a real , and not merely conjectural, harm.”).

2 For a regulation to be narrowly tailored, it must not only promote “a substantial government interest,” but that interest mu st “be achieved less e ffectively absent the regulation, and . . . not burden substantially more sp eech than is necessa ry to further the government’s legitimate interests.” Verl o, 820 F.3d at 1134 (quotation omitted). Although a regulation “need not be the least restrictive or least intrusive means” of furthering this interest, the First Amendm ent requires a “‘close fit between ends and means’ to ensure speech is not sacrificed for efficiency.” Evans, 944 F.3d at 856 (quoting McCullen, 573 U.S. at 486). “[T] he government may not forgo options that could serve its interests just as well, if those options woul d avoid substantially burdening the kind of speech in which Pl aintiffs wish to engage.” Verlo, 820 F.2d at 1135 (quotation and alterations omitted). To evaluate this fit, we begin by review ing the evidence the C ity uses to support the “means,” i.e., the restric tions imposed by the Revised Or dinance. Our evaluation of this evidence reveals many of the same weaknesses we identified when analyzing whether the City’s evidence met its burde n to show the existence of a real, nonconjectural harm. The fundamental problem is that the City has presented no evidence of concrete harm arising from th e presence of pedestrians on its medians. This failure infects our analysis of both the “ends” and the “means.” Chief Citty and Fowler testif ied that in their opinion, pedestrians are in danger near roadsides, including on medians. Th ey identified medians as the second most27 dangerous place for pedestrians, after traffic lanes, because medians expose pedestrians

to traffic on both sides. To justify the Revised Ordinanc e’s applicability to medians on streets with speed limits above forty miles pe r hour, the City presented information about

the relative risk of fatalities in auto-pedestrian accidents gi ven different vehicle speeds. 13 But not only did this generic “speed kills” evidence not addr ess medians, it also did not address any other factor, including the rela tionship between fatalitie s and the width or composition of medians, which we held relevant in Evans. 944 F.2d at 858 (“The Ordinance only prohibits sitting or standing on narrow or unpaved medians where it would be dangerous to do so. This is the sort of close fit the narrow tailoring requires.”). The Revised Ordinance places a severe burden on pl aintiffs’ speech. In Evans, we

concluded that the ordinance’s burden on speech was minimal because had Evans—the plaintiff in that case—stood ten feet farthe r down the same median, he would have been in compliance with the ordinance. Id. at 857 . Under those circumstances, we held that

Evans had not shown that a ten-foot differenc e substantially burdened his speech. Id. There is no similarly simple solution for plai ntiffs in this case. The Revised Ordinance entirely prohibits plaintiffs’ presence on the mo re than four hundred affected medians. They cannot walk mere feet down a median to reach a legal standing spot. Instead, they

13 As part of its argument, the City occas ionally refers to alleged distractions created by pedestrians on medians. But it identifies no eviden ce in the record supporting the proposition that pedestrians on medians provide such distractions that they affect drivers’ ability to drive safely. Moreove r, drivers testified that pedestrians are used to seeing speakers on medians and that pedestrian presence makes them more aware of their driving.28 must leave the median and either stand on a roadside or sidewalk or travel to an

unaffected median on a different block. Moreover, the fact that plaintiffs may s till engage in their speech on roadsides, sidewalks, or other medians does not mean that their speech is not burdened by the

Revised Ordinance. 14 See McCullen, 573 U.S. at 487 (concluding that the regulation substantially burdened McCullen’s speech despite her pe rsuasion of eighty women not to terminate their pregnancies because she “‘reac he[d] far fewer people’ than she did before the amendment” (citations and quotation om itted)). The Revised Ordinance is solely responsible for plaintiffs’ inability to stand on these medians, the mosteffective place for

their communication.

3 In light of the severity of this burden, the City has failed to demonstrate that less

burdensome alternatives would not achieve its interest in median sa fety. As the City acknowledges in its brief, under McCullen, “t he government must demonstrate that

alternative measures that burden substan tially less speech would fail to achieve the government’s interests, not simply that the chos en route is easier.” 573 U.S. at 495; see also ACLU of Colo. v. City & Cty. of De nver, 569 F. Supp. 2d 1142, 1176 (D. Colo. 2008) (“[T]he more exte nsive the restrictions, the more pr ecise the justifications for that restriction must be.”). The City asserts that “narrow tailoring does not require [it] to

14 We also note that the passage of the Revised Ordinance was quickly followed by the expansion of the existing Aggressive Panhandli ng Ordinance, which further restricted these alternative locations.29 undertake the futile task of identifying, review ing[,] and rejecting alternatives that could not possibly protect pedestrians on medians fro m vehicles, or drivers of vehicles from distractions caused by pedestrians.” But the onl y way for the City to evaluate alternatives is to consider them—precisely the burden ar ticulated in McCullen. Because the City presents us with no eviden ce that it contemplated the relative efficacy or burden on speech of any alternatives, we conc lude it has not met its burden. Plaintiffs propose several alternatives that would be less burdensome on speech but would still advance the City’s asserted in terest in median safety. These include specifying times during which pedestrians can stand on medians, limiting the Revised Ordinance’s application to the most dangero us intersections, requiring pedestrians to stand more than eighteen inch es back from the curb, or applying the ban to careless or negligent behavior. The City dismisses each option out of hand. It asserts it cannot limit the Revised Ordinance’s application to certain times beca use “pedestrian accidents occur at all times of day.” Although this may be true, the reco rd evidence demonstrates that these accidents certainly are not equally distributed throughout the day. For example, the City’s evidence demonstrates that “pedestria n collisions are highest in hours where the sun has set or is setting.” 15 Again, in addition to the f act that these collisions are not

15 We note also that the report presen ting this data proposes increased pedestrian infrastructure, education campai gns for drivers and pedestrians about the most dangerous times of the year for pede strians, and “traffic -demand management strategies” to increase safe ty. It does not propose lim iting or banning pedestrian presence in any manner.30 related to medians, a cursory statement impl ying that a time-based restriction would not stop all pedestrian injuries does not sufficien tly demonstrate that the City “seriously undertook to address the problem with less intrusive tools readily available to it.” McCullen, 573 U.S. at 494. The City further states it cannot apply th e Revised Ordinance only to dangerous

intersections because six months of data—in contrast to the twelve-plus years of data in

the record—demonstrate that th e dangerousness of intersections can vary over time. But the City has already identified the intersec tions where fatalities have occurred since at least 2003, and it provides no argument as to why targeting only these intersections

would fail to achieve its intere st. Similarly, a city planni ng report, adopted by the City Council and introduced by plaintiffs at trial, identifies the intersec tions at which autopedestrian accidents most frequently occurre d from 2003 to 2015, a nd the times of day— early to mid-evening—when accidents were mo st frequent. Perhaps this data correlates to a street’s speed limit; perhap s not. But we can say for cer tain there is no evidence in the record that the City consid ered any such correlation in cr eating its median ban. Given that the City has at its dispos al information regarding the rela tive safety of its medians at different times and in different locations, its fa ilure to consider altern atives is especially harmful to its argument. 16 The data supports numerous a lternatives to a total ban on

16 We also note that the City employs a chief traffic engineer, who did not participate in or contribute to the development of the Origin al or Revised Ordinances. He was also not requested to conduct any studies, evaluations, or surveys of the City’s medians to assess their relative safety, or to provide any recommendations regarding safety measures for pedestrians on medians.31 presence on affected medians—the “easier” (and far more burdensome to speech) alternative that was selected by the City. 17 As for plaintiffs’ proposal that the City require pedestrians to stay further than eighteen inches back from th e curb, the City su mmarily responds th at vehicles could travel further than eighteen in ches. But it offers no evidence of the frequency with which

vehicles travel further than ei ghteen inches, does not account for the fa ct that its own bus stops are placed at that distance from the curb , and disregards the testimony of its own chief traffic engineer that the eighteen-in ch distance provides a “safety zone” for pedestrians. 18 We also note that as in McCullen, the C ity has existing laws that could advance its interest in pedestrian safe ty on medians. For example, one law prohibits people from stepping into the street. City officials dismis sed this alternative, stating that “it’s very

17 We note that the characteristics of me dians that plaintiffs argue make them “safe,” see supra, also provide informa tion that would help the City craft an alternative to the Revised Or dinance that on this record would be less burdensome to plaintiffs’ speech. For exampl e, the City could limit the ordinance’s application to medians that are both insufficiently wide and located on street s where the actual speed of passing cars poses a substantial danger to pedestrians. Or it could only apply the Revised Ordinance to the mid-bloc k portions of medians on a given block. The City has more than enou gh information to craft an or dinance that burdens less speech and is closely aligned wi th its stated interest of public safety, should it decide to do so.

18 We are also not convinced by the City ’s cursory response that it could not regulate pedestrian activity on roadsides or sidewalks. It already does. See, e.g., §§ 30-428, 30-430 (barring aggr essive panhandling within twenty feet of outdoor restaurant seating, within fi fty feet of a mass transportati on stop, within fifty feet of school property, after dark, or of mi nors); § 30-81(f) (barring obstruction of pedestrian traffic on sidewalks).32 hard for the police to be th ere when [a person] actually step[s] off.” But ease of application is not a sufficient reason to bu rden First Amendment rights. See McCullen, 573 U.S. at 495 (stating that “[o]f cour se” the state’s regulation would make law enforcement’s “job so much eas ier,” but that the burden requires “demonstrat[ing] that

alternative measures that burden substantia lly less speech would fail to achieve the government’s interests, not simply th at the chosen route is easier”).

In addition to our conclusion that the City has not dem onstrated that pedestrian presence on medians is a concrete, non-specul ative problem, we also conclude that the City’s summary dismissal of alternatives is insufficient. “[G]iven the vital First Amendment interests at stake, it is not enou gh for [the City] simply to say that other approaches have not worked.” McCullen, 573 U. S. at 496. This is particularly so when there is no evidence that the City has trie d, or even considered, any less-burdensome alternatives. Instead, the City relies on unsupported statements that hypothetically these alternatives could not possibly work. The City “has not shown that it seriously undertook to address the problem with less intrusive tool s readily available to it[, n]or has it shown

that it considered different methods that ot her jurisdictions have found effective.” McCullen, 573 U.S. at 494; s ee also Cutting, 802 F.3d at 91 (“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.”); Reynolds, 779 F.3d at 231 (“[T]he burden of proving narrow tailoring requires the Coun ty to prove that it actually tried other methods to address the problem.”).33 4

The underinclusive nature of the Revised Ordinance also demonstrates at best a loose fit between its means and the City’s safe ty interest. Under the Revised Ordinance’s exception for legally author ized work, the City permits a non-profit named OKC Beautiful to landscape its medians. Th rough OKC Beautiful, volunteers from private businesses and organizations ma y stand, sit, or otherwise stay on medians to landscape the medians for the City and, in return for their services, install signs on the medians publicizing the entity’s sponsorship. Therefore, at the same time as OKC Beautif ul volunteers of all ages are permitted to remain on medians for substantial periods of time, the City entirely bars plaintiffs’ presence. Surely if it is safe for volunteer s to be on the medians long enough to beautify them, it is also safe for plainti ffs to be on the medians for si milar periods of time. But the Revised Ordinance only allows for the voluntee rs’ activities, not for plaintiffs’ protected expression. The City provides no real answer to this discrepa ncy, stating only that “[a] regulation is not otherwise objectionable simp ly because it doesn’t address all potential problems.” But on this record, plain tiffs’ expression is protected by the First Amendment, whereas the volunteers’ beautif ication efforts are not. See Williams-Yulee v. Fla. Bar, 575 U.S. 433, 448-49 (2015) (“[U]nderinclusi veness can raise doubts about whether the government is in f act pursuing the interest it inv okes, rather than disfavoring a particular speaker or viewpoint” and “can also reveal that a law does not actually advance a compelling interest” (quotation om itted)). The City has thus selectively criminalized activities protect ed by the First Amendment while allowing unprotected34 activities to proceed. 19

5

We conclude that the Re vised Ordinance is not na rrowly tailored to the problem it purports to addres s. The City has utterly failed to demonstrate the requisite “‘close fit between ends and means’ to ensure speech is not sacrificed for efficiency.” Evans, 944 F.3d at 856 ( quoting McCullen, 573 U.S. at 486); cf. id. (holding that the ordinan ce was narrowly tailored beca use the burden on Evans’ speech was insignificant and because the re gulation directly related to the exact information city officials had compiled regard ing safety of medians in their city). The City has taken “the extr eme step of closing a substa ntial portion of a traditional public forum to all speaker s . . . without seriously a ddressing the problem through

19 The City cites Williams -Yulee for the proposition th at underinclusiveness is only relevant if a regulation is “riddled with exceptions .” In Williams-Yulee, the Court concluded that the law “raise[d] no fa tal underinclusivity concerns” because it “aim[ed] squarely at the conduct most like ly to” advance its in terest; it “appli[ed] evenhandedly to all;” and “unlike some laws that we have found impermissibly underinclusive, [the law at is sue in that case] is not ri ddled with exceptions” because it “contains zero exceptions to its ban on personal solicitation.” 575 U.S. at 449. Certainly, a regulation’s bei ng “riddled with exceptions” de monstrates “red flag[s].” Id. But nothing in Williams-Yulee suggests underinclusiveness is only relevant when multiple exemptions are present. And in any event, the exception to the Revised Ordinance is, on this record, not constitutiona lly protected activity. Therefore, the Court’s conclusion in Williams-Yulee that it would “not punish Florida for leaving open more, rather than fewer, avenues of expression” does not apply. Id. at 452. Finally, unlike the regulation at issue in that case, th e Revised Ordinance is not “aim[ed] squarely at the conduct most likely to” achieve the City’s interest. Id. The evidence demonstrates that pedestrians are getting harmed in myriad other locations, but not on medians. Therefore, Williams -Yulee does not change our conclusion that the exemption for OKC Beautiful volunteers is pertinent and supports our holding that the Revised Ordinance is not narrowly tailored.35 alternatives that le ave the forum open for its time- honored purposes. The [City] may not do [so] consistent with the First Amen dment.” McCullen, 573 U.S. at 497; see also Reynolds, 779 F.3d at 232 (“[T]here is no evidence that the Coun ty ever tried to improve safety by prosecuting any roadway so licitors who actually obstructed traffic, or that it ever even considered prohi biting roadway solicitation only at those

locations where it could not be done safely. Without such evidence, the County cannot carry its burden of de monstrating that the Ame nded Ordinance is narrowly tailored.”).

E Although “the First Amendment does not guarantee the right to employ every

conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if th e remaining modes of communication are inadequate.” Evans, 944 F.3d at 860 (quo ting City Council of L. A. v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984)). 20 Analysis of alternative channels “must give practical recognition to the facts giving rise to the restriction on speech.” Citizens for Peace in Space, 477 F.3d at 1226. Accordingly, we “ask whether, given the particular [governmental interest], the ge ography of the area regulated, and the type of speech desired, there were ample alternative channe ls of communication.” Id. “To determine

20 Our conclusion that the City has failed to show that the Revised Ordinance is narrowly tailored means we are not required to address whether the Revised Ordinance leaves open ample alternative ch annels of communication. See, e.g., McCullen, 573 U.S. at 496 n.9. However, because this issue is likely to arise again, we address it. See Reyn olds, 779 F.3d at 232 n.5.36 whether alternative channels are adequate, cour ts assess in part the speaker’s ability to reach his or her intended audience.” Evans, 944 F.3d at 860 (citi ng Ward, 491 U.S. at 802). In this case, the parties’ dispute regarding this inquiry is one of amount. The City argues that plaintiffs have not been “complet ely foreclosed” from either using medians or engaging in their chosen speech, whereas pl aintiffs argue that the lack of viable communicative spaces mean s that ample alternative channels do not exist. We agree with plaintiffs. A valid time, place, and manner restriction “leave[s] open ample alternative channels of communication.” Frisby, 487 U.S. at 482. The inquiry is not whether the restriction completely forecl oses speech. And not only mu st there be ample channels; those channels must also be adequate. See Ta xpayers for Vincent, 466 U.S. at 812. For example, the Supreme Court has held that ample channels existed when an ordinance allowed picketing in neighborhoods, but barred protesters from picketing a single residence, see Frisby, 487 U. S. at 483-84, or when the government restriction only imposed an eight-foot distance between dem onstrators and their audience, see Hill v. Colorado, 530 U.S. 703, 729-30 (2000). And in Evans, we held that ample alternative channels existed when a pedestrian could st and on the same median ten feet away and comply with the or dinance. 944 F.3d at 860. Although we have recognized that “[c]itiz ens do not have a ri ght to convey their message in any manner they pref er, . . . they [do] have a right to convey their message in a manner that is constitutionally adequate.” Citizens for Peace in Space, 477 F.3d at 1226. For plaintiffs such as charitable solicitors, political campaigners, protestors, or37 panhandlers who engage with passing cars—or, more realistically, w ith their drivers—the record does not support the district court’s conclusion that moving to a sidewalk is an adequate alternative. Reco rd evidence showed that fo r many of these plaintiffs,

communications from sidewalks and roadside s would not provide adequate alternative opportunities for commun ication. Signs and communica tions from the sidewalk would

not be as visible to those in cars, and plaintiffs would have to compete with a jumble of other signs and messages from storefronts. And, for those seeking to hand out material or seeking to solicit funds—all of which we have held to be expressive activity—neither roadsides nor sidewalks would provide safe a nd direct access to the driver, who often will be a car’s only occupant. Rathe r, solicitors must step into th e road to close the distance between drivers and themselves, making ex changes from roadsides more difficult and dangerous than those from medians. As one councilman noted wh ile deliberating the ordinance, “it’s the entry into the street which is where all th e violent impact occurs.” Plaintiffs are also out of the sightline of drivers when on sidewalks. As plaintiff politician Faulk testified, a sidewalk is “jus t not as effective” because “if you have eight to nine lanes of traffic and you’re standing on a street corner, you’re only reaching the traffic right next to you, an d so maybe you see two lanes of traffic and they see what you’re holding up.” In contrast, “[i]n the me dian, you catch traffic coming from all four directions and you catch tra ffic from every lane in each direction. So you may be reaching as many as 16 lanes of traffic sometimes .” Just as in real estate, location matters in some constitutional questions. Cf. McCullen, 573 U.S. at 490 (holding

unconstitutional buffer zone restri ction requiring plaintiffs to stand a substantial distance38 away from an abortion pr ovider’s driveway). Further, record evidence demonstrates that there are “an extremely limited

number” of medians unaffected by the Revised Ordinance on which plaintiffs can engage in their expression. Accordin g to the City, there are only 103 unaffected medians, in contrast to approximately four hundred affected ones. And by the district court’s own estimate, fewer than eighty of those 103 are accessible to plaintiff McCraw, plaintiff Marshall, and other panhandlers due to the Aggressive Panhandl ing Ordinance. Plaintiffs testified that “[i]t’s getting hard to find a spot” because “[ t]here’s just not that many places for panhandlers and Curbsi de vendors to be.” Comp etition for the few remaining

unaffected medians is “fierce” and even violen t, inhibiting plaintiffs ’ ability to use them. Moreover, even if a plaintiff is lucky enough to secure a s pot, unaffected medians can be significantly less effective at c onveying speech because fewer vehicles are present. This evidence distinguishes this cas e from our decision in Evans, where we concluded that Evans did not “distinguish his ab ility to communicate with his target audience on affected

or unaffected medians” and failed to dem onstrate why a legal position ten feet down a median was constitutionally inadequate. 21 944 F.3d at 860. For plaintiffs who must engage with passing drivers for their expressi on, the City has also not demonstrated that

21 The City pointed to evidence that the number of Curbside vendors has increased and that the Oklahoma Libertaria n Party was able to obtain the requisite number of signatures on a ballot initiative petit ion. But evidence demonstrates that Curbside’s sales have decrease d under the Revised Ordinance, which better reflects the inadequacy of the unaffect ed medians, and that the OLP garnered most of its signatures before the Revi sed Ordinance took effect.39 there are ample adequate alternativ e channels for plaintiffs’ speech. 22

F For the above reasons, we conclude th at the City has not met its burden to

demonstrate that the Revised Ordinance is a constitutionally permissible time, place, and

manner restriction. We therefore hold that the Revised Ordinanc e violates the First

Amendment.

III Turning to plaintiffs’ due process claims, we first consider the district court’s

dismissal of the claim that the Revised Ordi nance violates their fundamental right to move or linger in traditiona lly open public places. In addition to the explicitly recognized right to intersta te travel, the Supreme Court has hinted at a right to freedom of local m ovement. In City of Chicago v. Morales, 527 U.S. 41 (1999), a three-judge plurality noted that “it is a pparent that an individual’s decision to remain in a public place of his ch oice is as much a part of his liberty as the

freedom of movement inside frontie rs that is a part of our her itage or the right to move to

22 Our concerns regarding the adequacy of alternatives do not extend to Wilson, Schindler, and Red Di rt Report. Wilson provide s no evidence to support a conclusion that she cannot stop to talk w ith her jogging companions on sidewalks or roadsides, rather than medians. Schindl er likewise provides no evidence that aside from his preference to run on grass along the marathon r oute—which does not pertain to the effectiveness of hi s expression—his expressive activity cannot be equally accomplished on sidewalks or roadsides. Finally, Red Dirt Report does not provide enough evidence to demonstrat e that sidewalks and roadsi des across the street from the event are not adequate a lternatives for it to report the news. Although medians present benefits by being “a little raised above the road” and out of the way of the first responders, we do not see sufficient evidence in the record to show that a nearby sidewalk or roadside acros s the street would not be an adequate alternative.40 whatsoever place one’s own inclination ma y direct[,] identified in Blackstone’s commentaries.” Id. (plurality) at 54 (citations and quotations omitted); see also Kent v. Dulles, 357 U.S. 116, 126 (19 58) (addressing a claim regard ing international travel, but noting that “[f]reedom of moveme nt is basic in our scheme of values”); Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1 972) (stating that walking, loitering, and similar activities “are historically part of the amenities of life as we have known them”). But see Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 277 (1993) (stating that “a purely intrastate restriction does not implicate the right of interstate travel”). Several of our sibling circu its have explicitly held thata fundamental right to the

freedom of movement exists. See Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002) (“[W]e hold that the Constitution pr otects a right to travel locally through public spaces and roadways.”); Nunez by Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997) (“Citizens have a fundamental right of free movement . . . .” (citation omitted)); Lutz v. City of York, Pa., 899 F. 2d 255, 268 (3d Cir. 19 90) (“[T]he right to move freely about one’s neighborhood or town, even by au tomobile, is indeed implicit in the concept of ordered liberty and deeply ro oted in the Nation’s history,” therefore a fundamental right.). Other circuits have concl uded that individuals hol d a liberty interest

in the freedom of movement bu t declined to deem the right fundamental. See Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011 ) (without addressing whether the right is fundamental, holding that “[p]lain tiffs have a constitutionally protected liberty interest to be in parks or on other city lands of their choosing that are open to the public generally”); Doe v. City of Lafayette, 377 F. 3d 757, 769-70 (7th Cir. 2004) (asserting41 that the “right to enter the parks to loiter or for other in nocent purposes . . . is not unimportant, [but] we cannot say that ex isting authority establishes that it is “fundamental”). Other circuits have held that regardless of a right to intrastate travel, there is no right to remain on a specific piece of public property. See Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008) (holding that although there is a right to intrastate movement, “it woul d distort the right to free tr avel beyond recognition to construe it as providing a substantive right to cross a particular parcel of land, enter a chosen dwelling, or gain admittance to a specific government building” (emphasis omitted)). We have previously concluded that the fu ndamental right to freedom of movement “appl[ies] only to interstate travel.” D.L. v. Unified Sch. Dist. No. 497, 596 F.3d 768, 776 (10th Cir. 2010). In D.L., plaintiffs’ claim that their fu ndamental right to travel was infringed by their expulsion from a public sc hool for non-residency failed because “the

travel that Plaintiffs claim was restricted was intrastate travel.” Id. Under D.L., plaintiffs’ argument that they have a fundame ntal right to remain on Oklahoma City’s medians—a purely intrastate location—similarl y fails. Although plaintiffs raise out-ofcircuit decisions and Supreme Court dicta to support their claim, “[w]e must generally follow our precedents abse nt en banc consideration.” Un ited States v. Lira-Ramirez, 951 F.3d 1258, 1260 (10th Cir. 2020). Concluding that plaintiffs do not have a fu ndamental right to remain on the City’s medians, we analyze their due process claim un der rational-basis review. To satisfy this test, the Revised Ordinance “n eed only be rationally related to a legitimate government42 purpose.” Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004). “[W]e look only to whether a reasonably conceivable rational basis ex ists [and] . . . are not allowed to second guess the wisdom of legislative policy-determin ations.” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1210 ( 10th Cir. 2009) (citati on and quotati on omitted). Although we

determined above that the C ity’s evidence failed intermediate scru tiny in the First Amendment context, it passes the lower bar of rational-basis review applicable when we review due process challenges to non-fundamental rights. Public safety is a significant government interest and, although the Revise d Ordinance may not be narrowly tailored or provide ample adequate alternatives, it is conc eivably rationally related to public safety.

IV Finally, we consider plaintiffs’ cl aim that the Revised Ordinance is unconstitutionally vague, on which the court gr anted summary judgment to the City. “The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” United States v. Hunter, 663 F.3d 1136, 1141 (10t h Cir. 2011) (quotation omitted). The Revised Ordinance exempts “[i]ndi viduals responding to any emergency situation.” § 32-458(e)(4). We hold that th e term “emergency,” as used in the Revised43 Ordinance, is not unconstitutionally vague. 23 An “emergency” is commonly understood

to mean “an unforeseen combination of circumstances or the resulting state that calls for immediate action;” “an urgent need for a ssistance or relief,” Emergency, MerriamWebster, https://www.merriam-webster.com/dicti onary/emergency (last visited June 24, 2020); “[a] juncture that arises or ‘turns up;’” or “a state of things unexpectedly arising, and urgently demanding immediate acti on,” Emergency, Oxford Eng. Dict. https://www.oed.com/v iew/Entry/61130?redirectedFrom =emergency#eid (last visited June 24, 2020).

We do not mean to minimize the importance of plainti ffs’ proposed scenarios or their real need to stand on medians, but we conclude there is a readily discernible difference between, on the one hand, “a candidate campaigning in an unexpectedly close election, an activist protesting an unfore seen event, a panhandler soliciting for unexpected expenses, a reporter c overing breaking news, or a jo gger responding to a text, call, cramp, or untied shoelace,” and on the other hand, someone ha ving to stand on a

23 We acknowledge the parties’ dispute re garding the applicable definition. The Original Ordinance excised most of th e existing definition, leaving “emergency” to mean “an unforeseeable occurrence of te mporary duration.” Ordinance 25,283. The Revised Ordinance kept th at definition. Ordinance 25,777. Later, Ordinance 25,709 repealed and replaced th e definition passed in the Original Ordinance. Okla. City, Okla. Ordinance 25,709 (Aug. 30, 2017). Ordinance 25,709’s definition restored much of the original language de fining an “emergency” as “an unforeseeable occurrence of temporary duration causing or resulting in an ab normal increase in traffic volume, cessation or stoppage of tr affic movement, or creation of conditions hazardous to normal traffic movement, incl uding fire, storm, accident, riot, or spontaneous assembly of larg e numbers of pedestrians in such a manner as to impede the flow of traffic.” Id. § 32-1(22). Bu t we need not decide what the applicable definition is—under all three definitions, th e term is not unconstitutionally vague.44 median due to an emergency. Dictionary definitions undersco re the immediacy and urgency of an emergency. And we conclude that an ordinary person would know that the above scenarios do not require action that is sufficiently immediate and urgent to constitute an emergency, and therefore, an exception to the Revised Ordinance. The Revised Ordinance thus “conveys sufficiently definite warning as to the proscribed conduct when measured by common understa nding and practices.” Roth v. United States, 354 U.S. 476, 491 (1957) (quotation omitted).

V

We REVERSE the district court’s dismissal of Wilson’s First Amendment claim and its entry of judgment fo r the City on all plaintiffs ’ First Amendment claims, and REMAND for further proceedings consiste nt with this opinion. We AFFIRM the court’s grant of summary judgment to the City on plaintiffs’ vagueness claim and its entry of judgment for the City on plai ntiffs’ freedom of movement claim.19-6008 – McCraw v. Oklahoma City

HARTZ , J ., Circuit Judge, concurring Although I cannot agree with some of the language in the majority opinion and

some of the statements in it th at are unnecessary to decide this case, I do agree with the holding. First, I agree that as a general rule me dians should be treated as public fora for First Amendment purposes. I would be open to argument that an exception should be made for the narrowest medians, which are cl early not designed for pe ople to stand on or congregate. But that issue need not be resolved now. Second, I agree that the City has failed to show that its ordinance is narrowly tailored to serve a significant governmental in terest. The City has singularly failed to support its ordinance with either data or expert reasoned opinion. The purported government interest is public safety. But a number of years of relevant data failed to support the claimed danger. I am not saying th at such data are ne cessary to support a claim of danger. Common sense and expert opinion may well suffice. But when there are data available, and they contradict wh at common sense and expert opinion may tell us, courts must be cautious before endor sing a governmental claim of danger. Exercising that caution, I cannot see that the ordinance is narrowly tailored. I would be inclined to be quite deferential to an ordinance that prohibits standing or congregating only on narrow medians, or portions of medians, that bordered thoroughfares with relatively high speed limits, since the prox imity and exposure to the traffic could lead to tragedy if the pede strian on the median or a driver on the2 thoroughfare is distracted or otherwise negligent. See Evans v. Sandy City , 944 F.3d 847, 860 (10th Cir. 2019) (upholdi ng ordinance prohibiti ng sitting or standing on median of less than 36 inches). Such an ordinance would appear to be narrowly tailored. But the

record in this case indicates that the medians in Oklahoma City come in a variety of sizes and shapes. And the City has given no reas oned argument why safety requires barring pedestrians from the entirety of all medians at all times of day if the speed limit on the adjacent road is at least 40 mph. In par ticular, some of the medians covered by the ordinance are well over 36 inches wide, so peopl e on the median coul d be more than 18 inches from traffic on both sides. Yet the city ’s own chief traffic engineer testified that

18 inches from a curbed roadway provides a safety zone and that city benches may be placed as close to the cu rb as 18 inches.