1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2547

AARON ROSS,

 Plaintiff – Appellant,

v.

WAYNE A. EARLY; MAYOR AND CITY COUNCIL OF BALTIMORE; 

BALTIMORE CITY POLICE DEPARTMENT,

 Defendants – Appellees,

and

RONALD FARLEY; GEORGE NILSON, In His Individual Capacity and 

Official Capacities as City Solicitor for the Mayor and City 

Council of Baltimore; ELENA DIPIETRO, In Her Individual and 

Official Capacities as Chief Solicitor for the Mayor and 

City Council of Baltimore; LINDA BARCLAY, In Her Individual 

Capacity as former Chief Solicitor for the Mayor and City 

and City Council of Baltimore; FREDERICK H. BEALEFELD, III, 

In His Individual Capacity and His Official Capacity as 

Commissioner of the Baltimore City Police Department,

 Defendants.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:09-cv-03255-JFM)

Argued: October 29, 2013 Decided: March 5, 2014

Before KEENAN, WYNN, and THACKER, Circuit Judges.
2

Affirmed by published opinion. Judge Thacker wrote the opinion, 

in which Judge Keenan joined. Judge Wynn wrote a dissenting 

opinion.

ARGUED: Sean Robert Day, LAW OFFICE OF SEAN R. DAY, Greenbelt, 

Maryland, for Appellant. Barron Stroud, Jr., STROUD & PRIEST, 

LLC, Baltimore, Maryland; Steven John Potter, BALTIMORE CITY LAW 

DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF:

George Nilson, Glenn T. Marrow, BALTIMORE CITY LAW DEPARTMENT, 

Baltimore, Maryland, for Appellees Mayor and City Council of 

Baltimore and Baltimore City Police Department.
3

THACKER, Circuit Judge:

Appellant Aaron Ross (“Appellant”) brought this action 

challenging his March 12, 2008 and March 25, 2009 arrests for 

refusing to obey Baltimore City Police Officer Wayne Early’s

(“Officer Early”) repeated orders to confine his leafleting to 

the area designated for protest activities outside the First 

Mariner Arena (the “Arena”) in Baltimore, Maryland. The 

designated protest area was defined by a written policy (the 

“Policy”) of the Mayor and City Council of Baltimore 

(collectively, the “City”) and the Baltimore City Police 

Department (“BCPD”). Appellant claims the Policy is facially 

unconstitutional as an invalid time, place, and manner 

restriction on First Amendment activity, and that Officer Early 

violated his state and federal rights. The district court 

granted summary judgment against Appellant on all claims. We 

hold, as did the district court, that the Policy is facially 

valid under the First Amendment as a reasonable time, place, and 

manner restriction, and we find no reversible error as to 

Appellant’s remaining claims. Accordingly, we affirm. 

I.

A.

The Arena is a large sports and entertainment venue 

located in downtown Baltimore. Due to its central location and 

the thirteen Mass Transit Administration (“MTA”) bus routes that 
4

discharge passengers in the area, the sidewalks and streets

adjacent to the Arena, i.e., West Baltimore Street, Hopkins 

Place, West Lombard Street, and South Howard Street, regularly 

experience heavy pedestrian and automotive traffic. This is 

particularly so between 6:30 and 7:30 p.m. on weekdays, when 

approximately 50 MTA buses make stops on the surrounding 

streets. 

Once a year, the City leases the Arena to Feld 

Entertainment for performances of the Ringling Brothers Barnum 

and Bailey Circus (the “Circus”). These performances, 

ordinarily held in late March, attract large crowds. Between 

seven and ten thousand patrons attend the 7:30 p.m. weekday 

shows, and putative attendees begin to gather outside of the 

Arena’s main entrance, located on the corner of West Baltimore 

Street and Hopkins Place, at 6:00 p.m. The performances also 

draw a number of animal welfare activists, such as Appellant,

who object to the Circus’s treatment of animals. During the 

Circus’s run, these annual demonstrators engage in various 

protest activities, including sign-holding, chanting, and 

leafleting, on the sidewalks contiguous to the Arena. Prior to 
5

2004, the City had no official policy restricting the 

demonstrators’ access to the relevant streets.1 

On March 12, 2003, the City, on the recommendation of 

Linda Barclay (“Barclay”), then Chief of the Legal Counsel 

Division in the City’s Law Department, issued a permit to People 

for the Ethical Treatment of Animals (“PETA”) to park a media 

truck on the West Baltimore side of the Arena prior to that 

night’s Circus performance. Although PETA complied with the 

terms of its permit, the position of the truck seriously 

obstructed the flow of traffic and caused several MTA buses to 

double park. Bus passengers and circus patrons overflowed from 

the sidewalk into the street, and BCPD and MTA officers were 

called to the scene to sort out the stalled traffic pattern and 

disperse the crowd. 

Subsequent to this incident, Officer Early and at 

least one other BCPD officer sought advice from Barclay as to

constitutionally permissible ways for BCPD to manage the 

potential disruption to pedestrian and automotive traffic caused 

by protesters during Circus performances. In response to this 

request, on March 10, 2004, Barclay issued the Policy, an e-mail 

 1 On March 13, 2003, Peter Saar, then acting Chief Legal 

Counsel for the BCPD, advised Officer Early that “the entire 

sidewalk” was available for demonstrators. J.A. 166. 

Citations to the “J.A.” refer to the Joint Appendix filed by the 

parties in this appeal.
6

to various City and BPCD personnel, setting forth certain 

limitations on the location of sidewalk demonstrators prior to 

Circus performances.2 Noting the implementation of this plan had 

“worked well,” the Law Department has since reissued the Policy 

by e-mail, with minor revisions, for each year of the Circus. 

J.A. 197-199. As last revised in 2006, the Policy provides: 

1. East Side of the Arena (Hopkins Place) – Any 

protestors will be asked to move to the sidewalk 

between the Arena and Hopkins Place. This will help 

alleviate any congestion problems at the main 

entrance.3

2. North Side of the Arena ([West] Baltimore Street) 

– Any protestors will be directed to stay within the 

brick area of the sidewalk, approximately 13 feet wide

between the curb and the middle of the sidewalk. This 

provides the remainder closer to the building for foot 

traffic to access Baltimore Street and main entrances. 

3. West Side of Arena (Howard Street) – Any 

protestors will be asked to remain on the corner of 

Howard and Baltimore Streets or to move to the middle 

of the block south of the Howard Street entrance. 

This will allow sufficient room for attendees to 

access the Arena from the Howard Street entrance. 

Id. The Policy further directs police officers to issue at 

least two verbal warnings prior to making any arrest for failure 

to obey a lawful order. See id.; see also Md. Code Ann., Crim. 

 2 The parties have stipulated that the e-mails “constitute[]

a policy of the Mayor and City Council of Baltimore and the 

Baltimore City Police Department[.]” J.A. 156.

3 Feld Entertainment parks large trailers on the Hopkins 

Place plaza during the pendency of the Circus. See J.A. 214, 

240. 
7

Law § 10–201(c)(3) (a person who “willfully fail[s] to obey a 

reasonable and lawful order that a law enforcement officer makes 

to prevent a disturbance to the public peace” is guilty of a 

misdemeanor). 

On March 12, 2008, and March 25, 2009, Appellant was 

leafleting within the prohibited area outside the Arena’s West 

Baltimore Street entrance. On each occasion, Officer Early 

repeatedly warned Appellant to move to the designated area and, 

when he refused, arrested him for failing to obey a lawful 

order. Appellant subsequently filed suit, alleging common law 

and constitutional torts against Officer Early as well as claims 

pursuant to 42 U.S.C. § 1983 against the City, BCPD, and other 

government officials for violating his First and Fourth

Amendment rights.

B. 

The lengthy procedural history of this case is 

thoroughly discussed in the district court’s two published 

opinions, Ross v. Early, 758 F. Supp. 2d 313 (D. Md. 2010)

(“Ross I”) and Ross v. Early, 899 F. Supp. 2d 415 (D. Md. 2012)

(“Ross II”), and we limit ourselves to summarizing the relevant 

portions of the orders currently on appeal.

On December 8, 2010, the district court denied the 

parties’ cross-motions for summary judgment on Appellant’s 

facial challenge to the Policy. See Ross I, 758 F. Supp. 2d at
8

319-25. Specifically, the court determined the level of 

scrutiny applicable to the Policy turned on a disputed question 

of material fact, i.e., whether the Policy “was of general 

application,” like an ordinance, or “specifically targeted to 

circus and animal welfare protestors,” like an injunction. Id.

at 323. The court reasoned that, if the Policy was an 

ordinance-like restriction on speech, intermediate scrutiny 

would apply and the Policy would be upheld. Id. at 323-25; see

Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989) (for 

purposes of intermediate scrutiny, a time, place, and manner 

restriction on speech is narrowly tailored “‘so long as the

. . . regulation promotes a substantial government interest that 

would be achieved less effectively absent the regulation,’” and 

it need not be “the least restrictive or least intrusive means” 

of serving the government’s significant interests (citation 

omitted)). If, however, the Policy was an injunction-like 

restriction on speech, heightened scrutiny would apply and the 

Policy would fail. Ross I, 758 F. Supp. 2d at 323-25; see

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994)

(for purposes of heightened scrutiny, a time, place, and manner 

restriction in the form of an injunction is only narrowly 

tailored if “the challenged provisions of the injunction burden 

no more speech than necessary to serve a significant government 

interest”). The ultimate resolution of this question, the court 
9

ruled, was a matter for the jury. Ross I, 758 F. Supp. 2d at 

323. 

Thereafter, on September 25, 2012, the court granted

Officer Early’s motion for summary judgment as to the claims 

against him in his individual capacity. See Ross II, 899 F.

Supp. 2d at 425-32. With respect to Appellant’s claims that 

Officer Early violated his First and Fourth Amendment rights

under 42 U.S.C. § 1983, the court concluded that, irrespective 

of the Policy’s constitutionality, Officer Early was entitled to 

qualified immunity because he had not violated any of 

Appellant’s “clearly established” constitutional rights. Id. at 

428-29. As for Appellant’s state law claims for false arrest 

and false imprisonment, the court concluded that Appellant had 

failed to demonstrate the absence of legal justification for his 

arrest and detention, a necessary predicate for sustaining such 

claims. Id. at 430-31.

Faced with an imminent jury trial that would determine 

the level of scrutiny applicable to the Policy, the parties 

entered into a stipulation agreeing the Policy “was generally 

applicable toward all expressive activity” and “was not targeted 

. . . toward restricting the activities of circus and animal 

welfare street protesters specifically.” J.A. 156. With the 

only remaining factual dispute thus resolved, the district 

court, consistent with its prior orders, determined that 
10

intermediate scrutiny was the proper standard against which to 

measure Appellant’s facial challenge. It thus entered judgment 

in favor of the City and BCPD, upholding the Policy as a 

reasonable time, place, and manner restriction on protected 

speech. See id. at 58. 

On appeal, Appellant accepts intermediate scrutiny as 

the applicable standard of review and challenges only the 

district court’s determination that, under that standard, the 

Policy is facially constitutional as a reasonable time, place, 

and manner restriction on speech. He further challenges the 

district court’s grant of qualified immunity to Officer Early 

and its dismissal of his state law claims in Ross II.

II.

We review a district court order granting summary 

judgment de novo, viewing the evidence in the light most 

favorable to the non-moving party. See Lansdowne on the Potomac 

Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 

187, 195 (4th Cir. 2013). The City bears the burden of showing 

the Policy satisfies the applicable level of scrutiny. See Bd. 

of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 

(1989). 

III.

We first address Appellant’s facial challenge to the 

Policy as an improper time, place, and manner restriction on 
11

protected speech. Applying intermediate scrutiny, we conclude 

the Policy is facially valid under the First Amendment. 

A.

We apply the time, place, and manner doctrine to 

determine whether restrictions placed on protected speech in 

public fora violate the First Amendment. See Ward v. Rock 

Against Racism, 491 U.S. 781, 791 (1989); Clatterbuck v. City of 

Charlottesville, 708 F.3d 549, 555 (4th Cir. 2013). Here, it is 

undisputed that the Policy regulates protected speech, applies 

to public sidewalks that serve as traditional public fora, and 

is content-neutral in that it may be “justified without 

reference to the content of the regulated speech.” Clark v. 

Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). 

Consequently, the Policy will be upheld if it is “‘narrowly 

tailored to serve a significant governmental interest, and . . . 

leave[s] open ample alternative channels for communication of 

the information.’” Ward, 491 U.S. at 791 (quoting Clark, 468 

U.S. at 293).

Before undertaking this analysis, however, we must 

determine the appropriate scope of our narrow tailoring inquiry. 

Our dissenting colleague would reject the intermediate standard 

articulated in Ward in favor of the heightened requirements set 

forth in Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 

(1994). We look to both Ward and Madsen to guide our inquiry. 
12

Under Ward and its progeny, a content-neutral 

regulation directed at the time, place, or manner of protected 

speech is ordinarily subject to intermediate scrutiny. See

Ward, 491 U.S. at 791. A regulation is narrowly tailored under 

this standard if it “‘promotes a substantial government interest 

that would be achieved less effectively absent the regulation’”

and does not “burden substantially more speech than is necessary 

to further the government’s legitimate interests.” Id. at 799 

(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). 

In this vein, the regulation need not be “the least restrictive 

or least intrusive means” of serving the government’s 

significant interests. Id. at 798-99. 

Where such a regulation takes the form of a courtissued injunction, however, the Supreme Court has determined 

that the “standard time, place, and manner analysis” set forth 

in Ward “is not sufficiently rigorous.” Madsen, 512 U.S. at 

765. Noting that “generally applicable statute[s]” are 

inexorably analyzed under Ward, the Court identified three 

“obvious differences” between ordinances and court-ordered 

injunctions that, in its view, compelled a heightened tailoring

standard for the latter. 512 U.S. at 764. First, “[o]rdinances 

represent a legislative choice regarding the promotion of 

particular societal interests,” while injunctions “are remedies 

imposed for violations (or threatened violations) of a 
13

legislative or judicial decree.” Id. at 764 (citation omitted). 

Second, injunctions bind only the parties in a particular case, 

not the public at large, and thus “carry greater risks of 

censorship and discriminatory application than do general 

ordinances.” Id. Third, injunctions are only warranted when 

the party to be enjoined has engaged or threatened to engage in 

impermissible activity, and as such, injunctions “can be 

tailored by a trial judge to afford more precise relief than a 

statute[.]” Id. at 765 (citation omitted). These differences, 

the Court reasoned, call for a “somewhat more stringent” 

application of the narrow tailoring test in the injunction 

context. Id. It thus adopted a heightened scrutiny standard, 

requiring that “the challenged provisions of the injunction 

burden no more speech than necessary to serve a significant 

government interest.” Id. (citation omitted).

In the dissent’s view, Ward and Madsen present a 

binary choice that must be resolved at the forefront of any 

litigation involving restrictions that are neither generally 

applicable statutes nor injunctions. The reviewing court, in 

other words, is charged with “conduct[ing] a fact-intensive 

inquiry to determine whether the restriction is more like an 

ordinance or more like an injunction” prior to selecting the 

appropriate level of scrutiny. Post at 8-9. Extrapolating from 

this principle, the dissent posits that the Policy more closely 
14

resembles an injunction than an ordinance because it (1) 

involved no legislative choice and (2) is not publicly 

available. See id. at 13-14. Thus, the dissent concludes, 

heightened scrutiny must apply. 

The dissent’s threshold premise, although wellreasoned, stands on uncertain legal ground. Our court has not 

yet expanded Madsen’s rationale beyond the borders of courtissued injunctions. Indeed, the Third Circuit is, to date, the 

only appellate court to have explicitly done so. See McTernan 

v. City of York, 564 F.3d 636, 654–55 (3d Cir. 2009) (applying 

heightened scrutiny to a targeted and ad hoc “police directive, 

issued by officers in the field”); see also Huminski v. 

Corsones, 386 F.3d 116, 155 (2d Cir. 2004) (citing Madsen with 

approval in analyzing the reasonableness of a targeted 

government restriction, issued by court security personnel to a 

single protester, in a nonpublic forum). In contrast, the 

overwhelming majority of our sister circuits have, post-Madsen, 

simply continued to analyze a wide variety of non-legislative 

governmental action, neither ordinance nor injunction, under

intermediate scrutiny. See, e.g., Marcavage v. City of N.Y., 

689 F.3d 98, 101, 106 (2d Cir. 2012) (policy instituted by 

police); Milestone v. City of Monroe, Wis., 665 F.3d 774, 782-84

(7th Cir. 2011) (city policy in the form of a senior center’s 

code of conduct); Marcavage v. City of Chicago, 659 F.3d 626, 
15

630-31 (7th Cir. 2011) (ad hoc oral police directives issued by 

officers in the field); Saieg v. City of Dearborn, 641 F.3d 727, 

730-31, 738-39 (6th Cir. 2011) (policy instituted by police); 

Faustin v. City and Cnty. of Denver, Colo., 423 F.3d 1192, 1196-

97, 1200-01 (10th Cir. 2005) (unwritten city policy); Menotti v. 

City of Seattle, 409 F.3d 1113, 1124-25, 1131-37 (9th Cir. 2005)

(executive order issued during civil emergency); Hobbs v. County 

of Westchester, 397 F.3d 133, 148-50 (2d Cir. 2005) (county 

policy in the form of an executive order); Potts v. City of 

Lafayette, Ind., 121 F.3d 1106, 1109, 1111-12 (7th Cir. 1997) 

(“operations order” drafted by police captain); Int’l Caucus of 

Labor Comms. v. City of Montgomery, 111 F.3d 1548, 1150, 1151-52

(11th Cir. 1997) (city policy “in the form of a letter from the 

City Attorney”).

The dissent distinguishes these cases on the grounds 

that they involve “legislative delegation[s] of policymaking 

authority,” “one-of-a-kind security situation[s],” or “obvious 

actual notice of the speech restriction.” Post at 14-15. The 

import of these purported distinctions is less than clear. 

Regardless of how these cases are categorized, they demonstrate 

that Madsen has rarely come into play outside of the injunction 

context, even in the limited universe of non-legislative 

actions. Indeed, to the extent these distinctions are even 

relevant, we observe that the instant case falls squarely within 
16

the dissent’s “obvious and actual notice” category –- in 

addition to the fact that the Policy has been publicly enforced

since 2004, the videos of Appellant’s arrests demonstrate that 

the police officers repeatedly advised the protestors (1) where 

they were permitted to demonstrate; (2) that the City had a 

“law” proscribing expressive activities to certain defined 

areas; and (3) that they should call the Law Department if they 

wanted more information. Cf. Faustin, 423 F.3d at 1195 (police 

officers asked protestor to leave and/or remove her banner 

pursuant to unwritten city policy); Int’l Caucus of Labor 

Comms., 111 F.3d at 1549 (police officers repeatedly ordered a 

group to cease distributing literature from tables, the group 

wrote a letter to the city, and the city replied by detailing 

its unwritten policy banning such tables); Potts, 121 F.3d at 

1997 (policy banning “weapons” posted on signs at rally entry 

point).

In any event, we need not definitely resolve this 

issue for the purposes of this appeal. Critically, the parties

have stipulated that the Policy is “generally applicable” and 

not “targeted . . . toward restricting the activities of circus 

and animal welfare street protestors specifically.” J.A. 156. 

As set forth in detail by the district court, the injunctionspecific concerns warranting heightened scrutiny identified in 

Madsen are largely inapposite in the context of generally 
17

applicable municipal policies. See, e.g., Madsen, 512 U.S. at

764 (“‘[T]here is no more effective practical guaranty against 

arbitrary and unreasonable government than to require that the 

principles of law which officials would impose upon a minority 

must be imposed generally.’” (quoting Ry. Express Agency, Inc. 

v. New York, 336 U.S. 106, 112–13 (1949))). Consequently, even 

if we were to accept the dissent’s initial premise, we would 

nonetheless conclude the Policy is not subject to heightened 

scrutiny. 

Although we share the dissent’s concerns with respect 

to the Policy’s non-legislative origins, we do not find these 

concerns to be dispositive. The Policy may not represent “a 

legislative choice,” Madsen, 512 U.S. at 764, but this fact, 

standing alone, does not create an injunction-like restriction 

on speech. See, e.g., ante at 14-15. Similarly, the remainder 

of the dissent’s concerns –- the procedures surrounding the 

Policy’s promulgation and distribution, its allegedly “secret” 

nature –- are more like bygone due process and vagueness 

challenges than reasons to apply heightened scrutiny. We should 

not rush to declare a new rule of constitutional law simply 
18

because we would have preferred that Appellant plead a different 

case.4 

In short, the parties have stipulated to a set of 

facts warranting the application of intermediate scrutiny, and 

it is under that rubric we proceed. We must thus determine 

whether, under the principles set forth in Ward, the Policy is 

“‘narrowly tailored to serve a significant governmental 

interest, and . . . leave[s] open ample alternative channels for 

communication of the information.’” 491 U.S. at 791 (quoting 

Clark, 468 U.S. at 293).

1.

We begin by addressing whether the Policy is 

“‘narrowly tailored to serve a significant governmental 

interest[.]’” Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 

293). A regulation is narrowly tailored if it (a) “‘promotes a 

substantial government interest that would be achieved less 

effectively absent the regulation,’” and (b) does not “burden 

substantially more speech than is necessary to further the 

 4 For similar reasons, the dissent’s concern that our ruling 

will provide municipal governments with the incentive to 

“develop and enforce speech-restrictive ‘Policies’ without 

having to provide even a whisper of advance notice” is overblown

–- the promulgation of such policies would be subject to the 

same due process and vagueness challenges that Appellant could 

have, but did not, raise here. Post at 16. 
19

government’s legitimate interests.” Id. at 799 (citation 

omitted). We consider each of these elements in turn.

a.

In order to meet its burden under the first prong of 

the narrow tailoring requirement, the City must demonstrate that 

the Policy “‘promotes a substantial government interest that 

would be achieved less effectively absent the regulation.’” 

Ward, 491 U.S. at 799 (citation omitted). The City’s express 

purpose in creating the Policy was to reasonably accommodate 

both circus protesters and circus attendees while ensuring 

protesters “(a) do not block pedestrian movement; (b) do not 

block entrances, exits or handicapped ramps; and (c) do not 

otherwise create a public safety hazard.” J.A. 167.

Our jurisprudence makes clear that a city’s interest 

“‘in maintaining the safety, order, and accessibility of its 

streets and sidewalks’” is sufficient to justify a time, place, 

and manner regulation. Green v. City Of Raleigh, 523 F.3d 293, 

301 (4th Cir. 2008) (quoting Cox v. City of Charleston, 416 F.3d 

281, 284 (4th Cir. 2005)). Indeed, as described by the Supreme 

Court, “municipal authorities, as trustees for the public, have 

the duty to keep their communities’ streets open and available 

for the movement of people and property, the primary purpose to 

which the streets are dedicated.” Schneider v. State of N.J., 

308 U.S. 147, 160 (1939). On this strength of authority, we 
20

have little trouble concluding the City’s asserted interest in

maintaining the flow of pedestrian traffic and ensuring public 

safety qualifies as “substantial.” 

This conclusion does not end our inquiry, however, as 

it is not enough for the City to identify an interest that is 

significant in the abstract. See Turner Broad. Sys., Inc. v. 

FCC, 512 U.S. 622, 664 (1994) (“That the Government’s asserted 

interests are important in the abstract does not mean, however, 

that the [challenged law] will in fact advance those 

interests.”).5 Rather, the City must demonstrate the Policy

“materially advances an important or substantial interest by 

redressing past harms or preventing future ones.” Satellite 

Broad. & Commc’ns Ass’n v. FCC, 275 F.3d 337, 356 (4th Cir. 

2001). Although we do not require the government to present a 

panoply of empirical evidence in order to satisfy this standard,

cf. United States v. Carter, 669 F.3d 411, 418 (4th Cir. 2012) 

(“[T]he Constitution does not mandate a specific method by which 

the government must satisfy its burden under heightened judicial 

scrutiny.”), it must nonetheless make some evidentiary showing

 5 Although Turner involved expressive conduct evaluated 

under the test set forth in United States v. O’Brien, 391 U.S. 

367, 377 (1968), we have recognized “the O'Brien test is 

‘little, if any, different from the standard applied to time, 

place, or manner restrictions.’” American Legion Post 7 of 

Durham, N.C. v. City of Durham, 239 F.3d 601, 609 n.9 (4th Cir. 

2001) (quoting Clark, 468 U.S. at 298). 
21

that the recited harms are “‘real, not merely conjectural,’” and 

that the Policy “‘alleviate[s] these harms in a direct and 

material way.’” Satellite Broad., 275 F.3d at 356 (quoting 

Turner, 512 U.S. at 664); see also Marcavage, 689 F.3d at 105

(where the government interest involves reducing a risk to 

public safety, it must show “the risk . . . is substantial and 

real instead of merely symbolic” (internal quotation marks and 

citation omitted)).

With these principles in mind, we are satisfied the 

City has adequately demonstrated that the presence of protestors 

on the relevant sidewalks presents a plausible threat to the 

orderly flow of pedestrian traffic and, concomitantly, public 

safety. In reaching this conclusion, we emphasize that the City 

is “entitled to advance its interests by arguments based on 

appeals to common sense and logic,” Multimedia Publ’g Co. of S. 

Carolina, Inc. v. Greenville-Spartanburg Airport, 991 F.2d 154, 

160 (4th Cir. 1993), particularly where, as here, the burden on 

speech is relatively small. See Bl(a)ck Tea Soc’y v. City Of 

Boston, 378 F.3d 8, 14 (1st Cir. 2004) (“[H]eavier burdens on 

speech must, in general, be justified by more cogent evidentiary 

predicates.”). 

The undisputed evidence reveals that the sidewalks 

surrounding the Arena suffer from severe congestion during 

performances of the Circus and that, at least once -- in the 
22

year preceding the issuance of the Policy -- the presence of 

protestors caused a significant safety hazard. Inasmuch as the 

Policy carves out a passageway dedicated to pedestrian movement, 

it materially reduces the risks the City intends to prevent. 

The Policy thus promotes the City’s significant interest in a 

manner “‘that would be achieved less effectively absent the 

regulation.’” Ward, 491 U.S. at 799 (citation omitted).6

b.

Next, we must ask whether the Policy “burden[s]

substantially more speech than is necessary to further the 

government’s legitimate interests.” Ward, 491 U.S. at 799. To 

satisfy this standard, the City need not regulate using “the 

least restrictive or least intrusive means” available to achieve 

its goals. Id. at 798. Put differently, “[s]o long as the 

means chosen are not substantially broader than necessary to 

 6 Appellant devotes much of his brief to the argument that 

the City’s interest is illusory because “there is nothing in the 

record to suggest that they were remedying an actual threat 

leafletting [sic] poses to a significant government interest.” 

Appellant’s Br. 28 (emphasis supplied). Appellant misapprehends 

the applicable standard. The interest served by the Policy must 

be judged “on the relation it bears to the overall problem the 

government seeks to correct, not on the extent to which it 

furthers the government’s interests in an individual case.” 

Ward, 491 U.S. at 801 (emphasis supplied); see also Albertini, 

472 U.S. at 688 (“The First Amendment does not bar application 

of a neutral regulation that incidentally burdens speech merely 

because a party contends that allowing an exception in the 

particular case will not threaten important government 

interests.”). 
23

achieve the government’s interest . . . the regulation will not 

be invalid simply because a court concludes that the 

government’s interest could be adequately served by some lessspeech-restrictive alternative.” Id. at 800.

The Policy restricts the protestors to three 

designated areas adjacent to the Arena, i.e., the outer half of 

West Baltimore Street’s 29-foot sidewalk, a designated portion 

of Howard Street’s 15-foot sidewalk, and the sidewalk directly 

across from the Hopkins Place plaza. The Policy is limited in 

both scope and duration, setting aside dedicated channels for 

pedestrian traffic on the relevant streets in order to promote 

the safety, order, and accessibility of its sidewalks during the 

pendency of a heavily attended event. On its face, the Policy 

does no more than “target[] and eliminate[] . . . the exact 

source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 

487 U.S. 474, 485 (1988) (citation omitted).

Appellant nonetheless contends the Policy is not 

narrowly tailored because a number of “obvious” and “feasible” 

alternatives exist that would permit more speech. Appellant’s 

Br. 36; see City of Cincinnati v. Discovery Network, Inc., 507 

U.S. 410, 418 n.13 (1993) (“numerous and obvious less-burdensome 

alternatives” are “a relevant consideration in determining 

whether the ‘fit’ between ends and means is reasonable”). He 

presents a lengthy list of proposed alternatives, ranging from 
24

“leaving things be” to implementing a system of “pro-rated” 

leafleting slots for individual protestors. Appellant’s Br. 36. 

Many of Appellant’s suggestions are vague and would require 

significant effort in implementation and enforcement –- the 

“obviousness” and “feasibility” of such alternatives is subject 

to debate. In any event, even if such alternatives are 

plausible, they do not alter our conclusion that the Policy does 

not burden substantially more speech than necessary. See Ward, 

491 U.S. at 797 (“[R]estrictions on the time, place, or manner 

of protected speech are not invalid simply because there is some 

imaginable alternative that might be less burdensome on speech.” 

(internal quotation marks and citation omitted)).

Appellant also posits the theory that the Policy is 

required to have a “small group exception” exempting a small 

number of persons, presumably leafleters, from its purview. 

Appellant’s Rep. Br. 9. In support of this bold assertion, he 

relies on Cox, in which we held the lack of a small group 

exception rendered unconstitutional a city’s policy requiring a 

permit for any gathering on public streets or sidewalks. 416 

F.3d at 285-86. Inasmuch as Cox involved an exceedingly broad 

prior restraint, burdened by a “heavy presumption against its 

constitutional validity,” Bantam Books, Inc. v. Sullivan, 372 

U.S. 58, 70 (1963), it has limited applicability to this case.

Indeed, in striking down the permit requirement as facially 
25

unconstitutional for lack of a “small group” exception, Cox went 

on to identify a number of less restrictive means to achieve the 

city’s objective -- including “ordinances that ‘regulate only 

the volume, location, or duration of [protected] expression,’ 

rather than subjecting all speech to a permit requirement.” 416 

F.3d at 286 (citation omitted). Faced with such clearly 

distinguishable authority, we can find no basis for importing 

the “small group” exception into the standard time, place, and 

manner context. 

For all these reasons, we conclude the Policy’s 

limited proscription on the locale of expressive activities is 

narrowly tailored to address threats to sidewalk congestion and 

public safety. 

c.

We close our narrow tailoring discussion by addressing 

a concern raised by the dissent. In its view, we have neglected 

to address an essential element of the narrow tailoring inquiry, 

i.e., “whether the restriction operates ‘in such a manner that a 

substantial portion of the burden on speech does not serve to 

advance [the government’s] goals.’” Post at 17 (alteration in 

original) (quoting Ward, 491 U.S. at 799). Measuring the Policy 

against this test, the dissent contends, reveals it to be

fatally underinclusive because the “secret nature of the 

restrictions” undermines the City’s goals. Id. at 19. 
26

The dissent derives its test for underinclusiveness

from the following passage in Ward: 

To be sure, th[e] [narrow tailoring] standard does not 

mean that a time, place, or manner regulation may 

burden substantially more speech than is necessary to 

further the government’s legitimate interests. 

Government may not regulate expression in such a 

manner that a substantial portion of the burden on 

speech does not serve to advance its goals. So long as 

the means chosen are not substantially broader than 

necessary to achieve the government’s interest, 

however, the regulation will not be invalid simply 

because a court concludes that the government’s 

interest could be adequately served by some lessspeech-restrictive alternative.

Ward, 491 U.S. at 799–800 (emphasis supplied) (internal 

citations and footnote omitted); see also post at 17.7 The 

emphasized passage bears no obvious relationship to the concept 

of underinclusiveness. More to the point, we are aware of no 

authority, and the dissent has cited none, that supports its

particular iteration of the narrow tailoring test. See post at 

17. 

We recognize, in any event, that the limited scope of 

a regulation on speech, i.e., underinclusiveness, can serve to 

 7 Notably, the dissent agrees with our conclusion that the 

Policy does not “burden substantially more speech than is 

necessary to further the government’s legitimate interests.” 

Post at 18. It is difficult to reconcile how a regulation can 

“burden [no] more speech than necessary” to further its goals 

while simultaneously “regulat[ing] expression in such a manner 

that a substantial portion of the burden on speech does not 

serve to advance its goals.” Id. 
27

“‘undermine[] the likelihood of a genuine [governmental]

interest[.]’” F.C.C. v. League of Women Voters of California, 

468 U.S. 364, 396 (1984) (second alteration in original) 

(citation omitted). The dissent, however, has identified no 

such infirmity here. The crux of its theory is simply that the

“secret” nature of the policy renders it constitutionally 

infirm. This is, in essence, a challenge to the Policy on 

vagueness grounds -– a challenge Appellant has not made. We 

will not, as the dissent urges, shoehorn a wholly undeveloped 

and unargued vagueness claim into this case under the guise of 

narrow tailoring.8

2.

The final prong of the time, place, and manner test 

asks whether the Policy “‘leave[s] open ample alternative 

channels for communication of the information.’” Ward, 491 U.S. 

 8 The fact that a few confused or disgruntled protestors 

actually caused some amount of pedestrian congestion by 

questioning the origin of the Policy does not, in any case, 

render the City’s rationale “a challenge to the credulous.” 

Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002); 

see, e.g., Nat’l Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 17 (D.C. 

Cir. 2009) (“‘Because the primary purpose of underinclusiveness 

analysis is simply to ensure that the proffered state interest 

actually underlies the law, a rule is struck for under

inclusiveness only if it cannot fairly be said to advance any 

genuinely substantial governmental interest, because it provides 

only ineffective or remote support for the asserted goals, or 

limited incremental support.’” (emphasis in original) (quoting 

Blount v. SEC, 61 F.3d 938, 946 (D.C. Cir. 1995))).
28

at 791 (quoting Clark, 468 U.S. at 293). In order to satisfy 

this standard, the available alternatives need not “be the 

speaker’s first or best choice” or “provide[] the same audience 

or impact for the speech.” Gresham v. Peterson, 225 F.3d 899, 

906 (7th Cir. 2000) (citations omitted). Rather, the relevant 

inquiry is simply whether the challenged regulation “provides 

avenues for ‘the more general dissemination of a message.’”

Green, 523 F.3d at 305 (quoting Frisby, 487 U.S. at 482-84). 

The Policy directs protestors to stand in designated 

areas located mere feet from their intended audience, within 

full view and earshot of both passersby and circus attendees, 

and imposes no restriction on the channels of expression 

employed therein. We readily conclude this narrow degree of 

geographical separation does not hinder the protestors’ ability 

to disseminate their message. See, e.g., Cmty. for Creative 

Non-Violence v. Turner, 893 F.2d 1387, 1393 (D.C. Cir. 1990) 

(“In considering whether a regulation leaves open ample 

alternative channels of communication, the [Supreme] Court has 

generally upheld regulations which merely limit expressive 

activity to a specific part of the regulated area or to a 

limited time frame.”); cf. Hill v. Colorado, 530 U.S. 703, 729 

(2000) (“Signs, pictures, and voice itself can cross an 8–foot 

gap with ease.”).
29

Although Appellant does not dispute the protestors’ 

ability to reach their intended audience from the designated 

areas via “hold[ing] sign[s],” “chant[ing],” or engaging in 

“other form[s] of communication,” Appellant’s Br. 37, he 

contends the Policy fails for lack of adequate alternatives 

because it does not provide “ample” opportunities to distribute 

leaflets.9

 Our inquiry, however, does not rise or fall on the 

efficacy of a single medium of expression. The First Amendment

affords no special protection to a speaker’s “favored or most 

cost-effective mode of communication,” Johnson v. City & County 

of Philadelphia, 665 F.3d 486, 494 (3d Cir. 2011) (citation and 

internal quotation marks omitted), and leafleting is not an 

inalienable right exempted from all forms of government 

regulation. See McCullen v. Coakley, 571 F.3d 167, 180 (1st 

Cir. 2009) (“[H]andbilling is not specially protected.”); Horina 

v. City of Granite City, 538 F.3d 624, 631 (7th Cir. 2008) 

(“[T]he right to handbill is not absolute and federal courts 

have determined that governments may enact reasonable 

restrictions on handbilling that are also consistent with the 

 9 To the extent Appellant argues the Policy is tantamount to 

a full-scale ban on leafleting, he mischaracterizes the record. 

Indeed, his own experts demonstrate that the Policy renders 

leafleting less effective, not foreclosed. See J.A. 283-84.
30

First Amendment.” (internal citation omitted)). Appellant’s 

arguments to the contrary are thus unavailing.

In short, given the limited nature of the prohibition 

in this case, we have no doubt the designated area affords ample 

opportunity for protestors to communicate effectively with their 

intended audience, whether by leafleting, holding signs, giving 

speeches, or engaging in other expressive activities. 

B.

Therefore, because the Policy’s limitation on speech 

is content neutral, narrowly tailored to achieve a substantial 

government interest, and allows ample alternative channels of 

communication, it is a permissible time, place, and manner 

restriction on speech. Accordingly, the district court 

correctly granted summary judgment as to Appellant’s First 

Amendment claims against the City and BCPD. 

IV.

Having determined the Policy comports with the First 

Amendment, we need only briefly address the remaining issues on 

appeal. Appellant argues the district court erred in (a)

granting Officer Early summary judgment on Appellant’s First and 

Fourth Amendment claims on the basis of qualified immunity; and 

(b) granting Officer Early summary judgment on Appellant’s state

law claims. Finding no error, we affirm. 
31

A.

We first decide whether the district court properly 

granted qualified immunity to Officer Early on Appellant’s First 

and Fourth Amendment claims. The qualified immunity defense 

“‘protects government officials from civil damages in a § 1983 

action insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a 

reasonable person would have known.’” Bland v. Roberts, 730 

F.3d 368, 391 (4th Cir. 2013) (quoting Edwards v. City of 

Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999)). Consequently, 

“[i]n determining whether a defendant is entitled to qualified 

immunity, [we] must decide (1) whether the defendant has 

violated a constitutional right of the plaintiff and (2) whether 

that right was clearly established at the time of the alleged 

misconduct.” Id. (citing Walker v. Prince George’s Cnty., 575 

F.3d 426, 429 (4th Cir. 2009)). Appellant’s First and Fourth 

amendment claims fail on the first prong of this inquiry. 

1.

We begin by considering whether Officer Early violated 

Appellant’s First Amendment rights. On this front, Appellant

contends that Officer Early is liable for viewpoint 

discrimination in violation of the First Amendment because he 

enforced the Policy only against Circus protesters. The record, 

however, is devoid of any evidence from which a reasonable juror 
32

could find that Officer Early arrested Appellant with a contentor viewpoint-based discriminatory purpose. See Pahls v. Thomas, 

718 F.3d 1210, 1230 (10th Cir. 2013) (“The Supreme Court has 

made clear that, for a discrimination claim rooted in the First 

Amendment, a plaintiff must show that a government official 

‘acted with discriminatory purpose,’” i.e., that he acted 

“because of, not merely in spite of, the action’s adverse 

effects upon an identifiable group.” (quoting Ashcroft v. Iqbal, 

556 U.S. 662, 676 (2009))). Rather, as the district court 

found, “[t]here is nothing to suggest that Officer Early . . . 

purposely targeted [Appellant] because he was protesting the 

Circus.” See Ross II, 899 F. Supp. 2d 415, 429 n.16 (D. Md. 

2012). Thus, the district court properly granted Officer Early 

qualified immunity on this claim. 

2.

Appellant’s Fourth Amendment claim, premised on his 

purportedly unlawful arrests, is similarly infirm. The 

circumstances of the arrests are straightforward: Officer Early 

repeatedly ordered Appellant to move the location of his 

leafleting activity in conformance with the Policy, and 

Appellant repeatedly refused. Ultimately, after issuing 

multiple warnings, Officer Early arrested Appellant –- twice --

for the misdemeanor crime of “willfully failing to obey a 

reasonable and lawful order that a law enforcement officer makes 
33

to prevent a disturbance to the public peace.” Md. Code Ann., 

Crim. Law § 10–201(c)(3). The district court, relying on these 

undisputed facts, concluded that Officer Early had probable 

cause to effectuate the challenged arrests “sufficient to 

vitiate any claim of [42 U.S.C.] § 1983 liability.” Ross II, 

899 F. Supp. 2d at 429. We agree.

A police officer may arrest an individual without a 

warrant if he “has probable cause to believe that an individual 

has committed even a very minor criminal offence in his 

presence[.]” Atwater v. Lago Vista, 532 U.S. 318, 354 (2001). 

Probable cause exists when the facts and circumstances known to 

the officer are sufficient to warrant an objectively reasonable

person in believing “‘that the suspect has committed, is 

committing, or is about to commit an offense.’” Pritchett v. 

Alford, 973 F.2d 307, 314 (4th Cir. 1992) (quoting Michigan v. 

DeFillippo, 443 U.S. 31, 37 (1979)). “‘Whether probable cause 

exists in a particular situation . . . always turns on two 

factors in combination: the suspect’s conduct as shown to the 

officer, and the contours of the offense thought to be committed 

by that conduct.’” Rogers v. Pendleton, 249 F.3d 279, 290 (4th 

Cir. 2001) (quoting Pritchett, 973 F.2d at 314). 

Turning first to the “contours” of the offense in 

question, we observe that Md. Code Ann., Crim. Law § 10–

201(c)(3) applies to offenders who “willfully fail to obey a 
34

reasonable and lawful order of a law enforcement officer, made 

to prevent a disturbance of the public peace.” Att’y Grievance 

Comm’n of Maryland v. Mahone, 76 A.3d 1198, 1210 (Md. 2013). 

Under this subsection, the “‘failure to obey a policeman’s 

command to move on when not to do so may endanger the public 

peace, amounts to disorderly conduct’” in violation of Maryland

law. Id. (citation omitted). This crime “is predicated on the 

law enforcement officer issuing a reasonable and lawful order,” 

Polk v. State, 835 A.2d 575, 580 n.3 (Md. 2003) (internal 

quotation marks omitted), and as such, the command “cannot be 

purely arbitrary and . . . not calculated in any way to promote 

the public order.” Mahone, 76 A.3d at 1211 (internal quotation

marks and citation omitted). 

Prior to each of the disputed arrests, Officer Early 

verbally ordered Appellant to move his leafleting activity to 

the designated area. This order was directed at enforcing the

Policy, which was, in turn, directed at maintaining the safety, 

order, and accessibility of the streets and sidewalks. Inasmuch 

as Appellant refused to heed these repeated requests, Officer 

Early had probable cause to effectuate both arrests. See

Atwater, 532 U.S. at 354. Officer Early thus did not violate 
35

Appellant’s Fourth Amendment rights, and the district court 

correctly found him entitled to qualified immunity.10

B.

With respect to Appellant’s state law claims, the 

district court determined his claims of false arrest and false 

imprisonment could not be sustained because each requires a 

showing that Appellant was deprived of his liberty without legal 

justification. See Ross II, 899 F. Supp. 2d at 430 n.16. We 

agree with the district court’s legal premise, see Okwa v. 

Harper, 757 A.2d 118, 190 (Md. 2000) (“For a successful cause of 

action based on false arrest or false imprisonment, the 

plaintiff must establish that ‘the defendant deprived him or her 

of his or her liberty without consent and without legal 

justification.’” (citation omitted)), and its finding that 

Appellant failed to make the requisite showing. We conclude, 

therefore, that the district court properly granted summary 

judgment in favor of Officer Early. 

 10 Appellant asserts a largely identical claim for 

unreasonable seizure under Article 26 of Maryland’s Declaration 

of Rights. Inasmuch as Article 26 protects the same rights as 

those protected under the Fourth Amendment, see Melgar ex rel. 

Melgar v. Greene, 593 F.3d 348, 360 (4th Cir. 2010), this claim, 

too, fails upon a finding of probable cause. 
36

V.

For the foregoing reasons, the judgment of the 

district court is

AFFIRMED.
37

WYNN, Circuit Judge, dissenting:

Appellant Aaron Ross was arrested in 2008 and again in 2009 

after he refused to obey Officer Wayne Early’s orders to stop 

leafleting in the middle of the sidewalk adjacent to Baltimore’s 

First Mariner Arena, which was hosting the circus. On both 

occasions, Ross had sought to exercise his First Amendment right 

to protest the circus’s treatment of animals by handing out 

leaflets to passersby, and on both occasions, Ross was 

conducting himself in a peaceful and unobtrusive manner. The 

sole basis for Early’s order was that Ross was violating what 

the majority opinion refers to as Baltimore’s “Policy” 

pertaining to where circus protestors could stand. 

But that “Policy” constituted nothing more than an e-mail—

copied, pasted, and resent with minor modifications year after 

year—from Baltimore’s city attorney to about a dozen members of 

the police department and city staff. It is undisputed that the 

staff attorney’s e-mail that formed the only basis of what the 

majority characterizes as “Policy” was neither adopted by the 

Baltimore City Council nor disseminated to the public in any 

systematic manner. And there is little dispute, if any, that 

the only people who knew about the existence of the e-mail were 

the unelected city employees who developed and sought to enforce 

its restrictions. 
38

Simply put, the staff attorney’s e-mail does not constitute 

Baltimore’s “Policy.” Additionally, the secret nature of 

Baltimore’s restrictions on First Amendment rights warrants the 

application of heightened scrutiny because of the potential for 

abuse and selective enforcement associated with the lack of 

notice and democratic accountability. But even if we were to 

allow the parties to agree that our review should be under a 

lower standard of scrutiny, Baltimore’s restrictions fail the 

narrow-tailoring analysis. 

It is axiomatic that our most basic notions of due process 

are jeopardized when speech restrictions are developed secretly 

in the back offices of city hall rather than publicly in the 

council chambers. It seems plausible to me that today’s 

decision will encourage local governments to avoid the timeconsuming and politically costly exercise of adopting speechrestrictive ordinances in favor of developing speech-restrictive 

“Policies” at the staff level. Accordingly, I must respectfully 

dissent from the differing view of my fine colleagues in the 

majority.1 

 1 The majority and the district court concluded that 

Baltimore’s “Policy” is content neutral and leaves open ample 

alternative channels of communication. Because I take issue 

only with (1) the level of scrutiny applied to the restrictions, 

and (2) the narrow-tailoring analysis that the district court 

and the majority conducted, I do not discuss either content 

(Continued)
39

I.

Most of the salient facts in this case are covered in the 

majority opinion and the district court’s two published 

opinions, Ross v. Early, 758 F. Supp. 2d 313 (D. Md. 2010) 

(“Ross I”) and Ross v. Early, 899 F. Supp. 2d 415 (D. Md. 2012) 

(“Ross II”). A few critical points, however, warrant special 

emphasis.

First, Ross was arrested in 2008 and 2009 for failing to 

obey Early’s orders, which were “aimed at enforcing the City’s 

Protocol.” Ross II, 899 F. Supp. 2d at 427. The district court 

explicitly stated that “[t]he record simply does not support” 

that Ross was threatening the public safety and that “Ross was 

in no way blocking or impeding the free flow of patrons 

attempting to enter or exit the building.” Id. Moreover, when 

Early was asked during his deposition whether he “ultimately 

arrested Mr. Ross for violating a law and not for violating an 

e-mail[,]” Early answered, “No, it was both.” J.A. 324. Thus, 

Early’s decisions to order Ross to move and to place Ross under 

arrest were clearly based on Ross’s failure to conform to the 

 

neutrality or alternative channels of communication in this 

dissent.
40

restrictions in the e-mail and not on Ross’s interference with 

pedestrian flow or public safety.

Second, the district court found that the significant 

government interests that the restrictions were designed to 

serve were the preservation of “freedom of movement on public 

streets and sidewalks[,]” Ross I, 758 F. Supp. 2d at 322, as 

well as “pedestrian safety,” Ross II, 899 F. Supp. 2d at 425.

Third, when Ross was arrested in 2008 and 2009, the 

restrictions were in their fifth and sixth years of enforcement. 

Nonetheless, the restrictions had not been formally adopted, and 

there is no evidence that the City took measures to inform the 

public about them. Additionally, the district court noted in 

both of its opinions that the police officers’ orders were 

somewhat vague and left the protestors confused. See Ross II, 

899 F. Supp. 2d at 427–28 (“Further, at one point Ross is simply

told ‘red brick,’ a reference to the bricked outer portion of 

the sidewalk, the Protocol’s designated area for 

demonstrations.”); Ross I, 758 F. Supp. 2d at 325 (“On the video 

showing [Ross’s] arrest, demonstrators are seen repeatedly 

expressing confusion about the source of the restrictions and 

the interaction with their First Amendment rights. The police 

could not dispel this confusion because they were unable to 

direct demonstrators to a specific regulation or ordinance and 

could only instruct them to call the Law Department.”).
41

Finally, in Ross II, the district court granted summary 

judgment to Early and the municipal defendants on all of Ross’s 

claims, with the exception of Ross’s Section 1983 claims against 

the City and the Baltimore City Police Department, which alleged 

that the speech restrictions were unconstitutional. Ross II, 

899 F. Supp. 2d at 421, 432–33. The district court determined 

that the resolution of these claims turned on a disputed factual 

question, namely whether the restrictions were generally 

applicable or “targeted toward animal welfare demonstrators 

specifically[.]” Id. at 422. The district court held that if 

the restrictions were generally applicable, they would be 

constitutional by virtue of the more lenient standard of review 

that applies to ordinances and statutes. Id. at 421–22 

(explaining that under intermediate scrutiny, “a time, place, 

and manner restriction on speech is narrowly tailored ‘so long 

as the . . . regulation promotes a substantial government 

interest that would be achieved less effectively absent the 

regulation.’” (quoting Ward v. Rock Against Racism, 491 U.S. 

781, 799 (1989))). The district court went on to explain that 

if, on the other hand, the restrictions were targeted toward the 

circus protestors, then they would be “more analogous to an 

injunction than a statute of general application, and failing to 

be sufficiently tailored under heightened scrutiny, would be 
42

struck down as unconstitutional.” Id. The parties then 

stipulated that the restrictions were generally applicable. 

II.

The First Amendment prohibits the government from 

“abridging the freedom of speech . . . or the right of the 

people peaceably to assemble[.]” U.S. Const. amend. I; see also

Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the 

freedom of speech against the states) and DeJonge v. Oregon, 299 

U.S. 353, 364–65 (1937) (incorporating the freedom of assembly 

against the states). “Leafletting and commenting on matters of 

public concern are classic forms of speech that lie at the heart 

of the First Amendment, and speech in public areas is at its 

most protected on public sidewalks, a prototypical example of a 

traditional public forum.” Schenck v. Pro-Choice Network of W. 

N.Y., 519 U.S. 357, 377 (1997). 

But our constitutional speech rights are not unlimited 

because the First Amendment “does not guarantee the right to 

communicate one’s views at all times and places or in any manner 

that may be desired.” Heffron v. Int’l Soc’y for Krishna 

Consciousness, Inc., 452 U.S. 640, 647 (1981). Thus, “even in a 

public forum the government may impose reasonable restrictions 

on the time, place, or manner of protected speech, provided the 
43

restrictions ‘are justified without reference to the content 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 the 

information.’” Ward v. Rock Against Racism, 491 U.S. 781, 791 

(1989) (quoting Clark v. Community for Creative Non-Violence, 

468 U.S. 288, 293 (1984)). 

I agree with the majority opinion that Baltimore’s “Policy” 

is content neutral and leaves open ample alternative channels of 

communication. Content-neutral speech restrictions are subject 

to one of two standards of scrutiny: heightened or intermediate. 

See Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 764–65

(1994). As discussed below, the main difference between the two 

standards is the rigor of the narrow-tailoring analysis. Before 

reaching the narrow-tailoring analysis, however, a court must 

first select the appropriate standard of scrutiny. 

A.

Under the first step of the analysis—selecting the 

appropriate standard of scrutiny—we are guided by two major 

Supreme Court decisions: Ward, 491 U.S. at 781, and Madsen, 512 

U.S. at 753.2 When we review “a content-neutral, generally 

 2 The majority notes that Ross “accepts intermediate 

scrutiny as the applicable standard of review and challenges 

only the district court’s determination that, under that 

(Continued)
44

applicable statute, instead of an injunctive order, its 

constitutionality [is] assessed under the standard set forth in 

Ward[.]” Madsen 512 U.S. at 764. Injunctive orders, by 

contrast, “require a somewhat more stringent application of 

general First Amendment principles . . . .” Id. at 765. Thus, 

in general, to determine whether the appropriate standard in a 

 

standard, the Policy is facially constitutional as a reasonable 

time, place, and manner restriction on speech.” Ante at 10. 

But the district court’s conclusions of law pertaining to the 

First Amendment claim at issue here are reviewable by this 

Court, regardless of whether Ross “accepts” those conclusions or 

not. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 

(1991) (“When an issue or claim is properly before the court, 

the court is not limited to the particular legal theories 

advanced by the parties, but rather retains the independent 

power to identify and apply the proper construction of governing 

law.”).

Additionally, although the majority states that “the 

parties have stipulated to a set of facts warranting the 

application of intermediate scrutiny,” ante at 18, the parties’ 

stipulations simply cannot convert the e-mails sent by an 

unelected city lawyer into an ordinance. Because there is 

neither an ordinance nor an injunction, this case does not fit 

neatly into either the Ward or the Madsen analysis. It, 

therefore, remains our duty to ensure that the appropriate level 

of scrutiny is applied. See Marbury v. Madison, 5 U.S. 137, 177 

(1803) (“It is emphatically the province and duty of the 

judicial department to say what the law is.”). Moreover, even 

if the parties attempted to stipulate to the standard of review, 

it should go without saying that “[w]e are not bound to accept, 

as controlling, stipulations as to questions of law.” Sanford’s 

Estate v. Comm’r Internal Revenue, 308 U.S. 39, 51 (1939). See

also Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289–90 

(1917) (“If the stipulation is to be treated as an agreement 

concerning the legal effect of admitted facts, it is obviously 

inoperative; since the court cannot be controlled by agreement 

of counsel on a subsidiary question of law.”). 
45

case is heightened or intermediate scrutiny, courts must 

consider whether the restriction is an injunction or an 

ordinance. But as this case illustrates, not every speech 

restriction fits neatly into one category or the other. And 

when that happens, courts must conduct a fact-intensive inquiry 

to determine whether the restriction is more like an ordinance 

or more like an injunction.

Madsen’s interpretation of Ward provides a description of 

the “obvious differences . . . between an injunction and a 

generally applicable ordinance.” Madsen, 512 U.S. at 764. 

First, and perhaps most importantly, “[o]rdinances represent a 

legislative choice regarding the promotion of particular 

societal interests.” Injunctions, “by contrast, are remedies 

imposed for violations (or threatened violations) of a 

legislative or judicial decree.” Id. Second, injunctions 

“carry greater risks of censorship and discriminatory 

application than do general ordinances.” Id. “‘[T]here is no 

more effective practical guaranty against arbitrary and 

unreasonable government than to require that the principles of 

law which officials would impose upon a minority must be imposed 

generally.” Id. (quoting Ry. Express Agency, Inc. v. New York, 

336 U.S. 106, 112–13 (1949)). Third, injunctions “can be 

tailored by a trial judge to afford more precise relief than a 
46

statute where a violation of the law has already occurred.” Id.

at 765. 

If our analysis of the restriction reveals that it is more 

like an ordinance, then we would apply the intermediate 

standard. But if our analysis reveals that the restriction is 

more like an injunction, then we would undertake a “somewhat 

more stringent application of general First Amendment 

principles[.]” Id. To put it simply, although speechrestrictive ordinances and injunctions all must be narrowly 

tailored, the fit between the speech restriction and the 

government’s goals must be closer with an injunction than with 

an ordinance. The next section contains a more detailed 

description of the differences between Ward’s intermediatescrutiny standard and Madsen’s heightened-scrutiny standard. 

B.

In Ward, a case involving sound-amplification guidelines 

that applied to all users of a bandshell in Central Park, the 

Court held that a “regulation of the time, place, or manner of 

protected speech must be narrowly tailored to serve the 

government’s legitimate, content-neutral interests but that it 

need not be the least restrictive or least intrusive means of 

doing so.” Ward, 491 U.S. at 798. The Court went on to explain 

that the narrow-tailoring requirement is satisfied “‘so long as 

the . . . regulation promotes a substantial government interest 
47

that would be achieved less effectively absent the regulation.” 

Id. at 799 (quoting United States v. Albertini, 472 U.S. 675, 

689 (1985)). But the Supreme Court did not stop there. It 

continued: “To be sure, this standard does not mean that a time, 

place, or manner regulation may burden substantially more speech 

than is necessary to further the government’s legitimate 

interests. Government may not regulate expression in such a 

manner that a substantial portion of the burden on speech does 

not serve to advance its goals.” Id. at 799.

In Madsen, a case in which abortion protestors were 

enjoined from standing within certain “buffer zones” on public 

and private property, the Court explained that the “standard 

time, place, and manner analysis is not sufficiently rigorous.” 

Madsen, 512 U.S. at 765. It held that the inquiry for an 

injunction is whether it burdens “no more speech than necessary 

to serve a significant government interest.” Id. In other 

words, injunctions may not burden more speech than necessary to 

serve a significant government interest, whereas ordinances may 

not burden substantially more speech than necessary to serve a 

significant government interest. The difference between the 

Ward and Madsen standards is that Ward tolerates a degree of 

overinclusiveness whereas Madsen demands that a restriction 

burden no more speech than required. 
48

Madsen did not, however, change the narrow-tailoring 

analysis that courts must conduct for ordinances. Even under 

the less rigorous intermediate scrutiny, “[g]overnment may not 

regulate expression in such a manner that a substantial portion 

of the burden on speech does not serve to advance its goals.” 

Ward, 491 U.S. at 799. Put differently, an underinclusive 

speech restriction also violates the First Amendment, and in 

this respect, intermediate scrutiny and heightened scrutiny are 

the same. Thus, if a regulation burdens speech in such a way 

that it fails to advance the government’s goals, the regulation 

violates the First Amendment because it is not narrowly tailored 

under either the Madsen standard for injunctions or the Ward

standard for ordinances. 

In sum, a properly conducted narrow-tailoring analysis 

examines both whether the restriction is over- or 

underinclusive. The test for overinclusiveness is more 

stringent for an injunction than it is for an ordinance, but the 

test for underinclusiveness is identical for both types of 

speech restrictions. I turn now to an analysis of the facts of 

the case to explain why I would apply heightened scrutiny and 

why, even under intermediate scrutiny, Baltimore’s restrictions 

would fail a properly conducted narrow-tailoring analysis.
49

III.

A.

Baltimore’s restrictions were imposed neither via an 

injunction nor via an ordinance. However, it is clear to me 

that the City’s unadopted and secret speech restrictions more 

resemble an injunction than an ordinance.

In deciding to apply the less-stringent intermediate 

standard, both the district court and the majority found the 

generally applicable nature of the restrictions to be 

dispositive. This was error because general applicability is 

only one characteristic of ordinances. And nothing suggests 

that it is somehow a dispositive one. As the Supreme Court 

noted in Madsen, and as the majority opinion recognizes here, 

ordinances “represent a legislative choice” and carry fewer 

“risks of censorship and discriminatory application” than do 

injunctions. Madsen, 512 U.S. at 764; ante at 12-13.

By stark contrast, Baltimore’s restrictions involved 

absolutely no legislative choice regarding the promotion of 

societal interests. Instead, they were simply made up by an 

unelected city lawyer. That unelected city employee wrote the 

restrictions without notice to the public and without the 

opportunity for public input that is generally required for 

ordinances passed pursuant to Maryland state law and pursuant to 

the Charter for the City of Baltimore. See Md. Code Ann., Local 
50

Gov’t § 9-105 (precluding Maryland counties from adopting acts, 

ordinances, or resolutions until ten days after a public hearing 

and requiring the publication of advance notice of the hearing 

and a summary of the proposed enactment in a newspaper of 

general circulation once each week for two successive weeks); 

Charter of Baltimore City art. III, § 14 (requiring legislative 

acts to “be by ordinance or resolution” and precluding 

ordinances from taking effect until after three separate 

readings). The fact that the public never knew—or even could 

have known—about the existence of the restrictions poses risks 

of censorship and discriminatory application that are even 

greater than those risks with injunctions. After all, when a 

court issues an injunction, it is clear who is bound and what 

conduct is proscribed. Moreover, the enjoined party’s ability 

to appeal provides an avenue of relief that is not available

with a secret regulation.

The majority cites several cases in which other circuits 

have applied intermediate scrutiny to generally applicable, but 

unadopted, restrictions on speech. Obviously, this Court is not 

bound by the decisions of other circuits. But to the extent 

that the cited cases are offered to guide our analysis, they are 

easily distinguishable from the facts here because they involve 
51

a legislative delegation of policymaking authority,3 a one-of-akind security situation,4 or obvious actual notice of the speech 

restriction.5 

Here, by contrast, Ross had no idea of the existence of the 

restrictions until he deposed Early while taking discovery in 

this lawsuit—a full six months after his second arrest, and a 

year-and-a-half after his first arrest. Indeed, no evidence 

suggests that anyone beyond the drafter and a dozen or so 

recipients of the e-mail containing the restrictions—all of whom 

were people responsible for enforcing the restrictions—had any 

knowledge of their existence. There is also no evidence that 

 3 Saieg v. City of Dearborn, 641 F.3d 727, 730 (6th Cir. 

2011) (involving a no-leafleting policy at the Arab 

International Festival that was developed by the Dearborn police 

department pursuant to a resolution passed by the City Council 

that subjected the Festival to “the rules and regulations of the 

Police Department”). 

4 Marcavage v. City of N.Y., 689 F.3d 98, 105 (2d Cir. 2012)

(involving the City of New York’s demonstration policy that 

pertained to the Republican National Convention at Madison 

Square Garden, which presented “extraordinary” security 

challenges in the wake of the 2001 terrorist attacks). The 

demonstrators in Marcavage also had actual notice of the 

restrictions.

5 Faustin v. City and County of Denver, Colo., 423 F.3d 1192 

(10th Cir. 2005) (involving an unwritten total ban on signs and 

banners on highway overpasses); Int’l Caucus of Labor Comms. v. 

City of Montgomery, 111 F.3d 1548 (11th Cir. 1997) (involving 

Montgomery’s ban on the placement of information tables on city 

sidewalks and landscaping strips); Potts v. City of Lafayette, 

Ind., 121 F.3d 1106 (7th Cir. 1997) (involving the posted 

prohibition against entering a KKK rally with any item that 

could be used as a weapon). 
52

the restrictions were enforced only in emergency or otherwise 

unique security situations. Moreover, even if it could be 

argued that there was no time to officially adopt the 

restrictions initially, the City certainly had time to adopt and 

publicize the restrictions at some point during the five years 

between their creation and Ross’s first arrest.

Today’s ruling has troubling implications. After today, 

generally applicable, albeit secret, speech restrictions are 

afforded the same level of scrutiny in the Fourth Circuit as 

duly adopted ordinances. The potential for abuse is great. 

Local governments will be able to develop and enforce 

speech-restrictive “Policies” without having to provide even a 

whisper of advance notice regarding the existence or content of 

the restrictions. In the event that the public becomes aware of 

the secret speech restrictions, there will be no electoral 

accountability for the unelected employees who developed the 

restrictions. And, perhaps most troubling, judicial relief will 

be more difficult to obtain for the person whose speech is 

restricted via enforcement of a secret “Policy” than it would be 

for a person whose speech is restricted via the enforcement of 

an injunction entered against him. The irony, of course, is 

that the person restricted by the injunction knows exactly what 

speech or conduct is proscribed, whereas the person restricted 
53

by the secret “Policy” does not—and cannot—know the same until 

it is too late.

For the foregoing reasons, I would apply the more rigorous 

narrow-tailoring analysis described in Madsen to Baltimore’s 

unadopted, speech restrictions in this case. I turn now to an 

explanation of why, even under intermediate scrutiny, I would 

hold that Baltimore’s restrictions are not narrowly tailored 

and, thus, fail. 

B.

Though I believe that heightened scrutiny is the correct 

standard to apply in this case, even under the lower 

intermediate scrutiny standard applied by the majority, 

Baltimore’s restrictions fail the narrow-tailoring analysis. As 

I described above, a properly conducted analysis of a statute or 

ordinance under intermediate scrutiny requires courts to 

analyze, at a minimum, both (1) whether the restriction burdens 

substantially more speech than necessary; and (2) whether the 

restriction operates “in such a manner that a substantial 

portion of the burden on speech does not serve to advance [the 

government’s] goals.” Ward, 491 U.S. at 799. If the 

restriction is overinclusive, it fails the first part of the 

narrow-tailoring analysis. If the restriction is 

underinclusive, it fails the second part of the narrow-tailoring 
54

analysis.6 See City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) 

(discussing underinclusiveness in the context of content 

neutrality and noting that “[w]hile surprising at first glance, 

the notion that a regulation of speech may be impermissibly 

underinclusive is firmly grounded in basic First Amendment 

principles.” (emphasis in original)). 

Here, Baltimore’s goals are simple and legitimate; they are 

to ensure “freedom of movement on public streets and 

sidewalks[,]” Ross I, 758 F. Supp. 2d at 322, and to ensure 

“pedestrian safety[,]” Ross II, 899 F. Supp. 2d at 425. The 

record contains ample evidence regarding the congestion on the 

sidewalks as circus-goers queue up to enter First Mariner Arena. 

Additionally, the restrictions do not ban leafleting altogether. 

Rather, they require leafleters to stand in specified locations, 

all of which are on the same block as the Arena. Therefore, I 

take no issue with the majority’s and district court’s 

conclusion that under Ward, the restrictions do not burden 

substantially more speech than necessary and are not 

overinclusive.

However, it seems plain to me that the restrictions are 

underinclusive because they “regulate expression in such a 

 6 The majority and the district court simply fail to 

undertake this second part of the narrow-tailoring analysis.
55

manner that a substantial portion of the burden on speech does 

not serve to advance [the government’s] goals.” Ward, 491 U.S. 

at 799. It bears repeating both the burden imposed by the 

restrictions as well as Baltimore’s goals: the burden on speech 

is the prohibition against leafleting on the sidewalks adjacent 

to First Mariner Arena, and the goals are to maintain pedestrian 

flow and safety. The apparent mismatch between the burden on 

speech and Baltimore’s goals is caused by the secret nature of 

the restrictions.

The record contains still images and videos of Ross’s 2008 

and 2009 arrests. It is evident that, as the district court 

found, Ross posed no threat to public safety and did not impede 

pedestrians while distributing leaflets. Ross II 899 F. Supp. 

2d at 427. It is equally evident that the police caused 

pedestrian congestion while they attempted to explain the 

restrictions to the (understandably) confused protestors. The 

protestors’ reluctance to stop engaging in peacefully conducted 

protected speech is understandable because they had neither 

actual nor constructive knowledge of the restrictions on their 

First Amendment rights. Indeed, an arrest video shows one 

protestor calling her lawyer to ask whether the First Amendment 

protected her right to distribute leaflets on the public 

sidewalk. Unfortunately for that protestor, not even the 

world’s best First Amendment lawyer could have given a client 
56

proper advice in this situation because the only people who knew 

about Baltimore’s First Amendment restrictions were those few 

recipients of the city attorney’s e-mail.

As the majority correctly notes, it is the City’s burden to 

demonstrate that the speech restrictions meet the applicable 

level of scrutiny. See Bd. of Trustees of State Univ. of N.Y. 

v. Fox, 492 U.S. 469, 480 (1989). The City has not met that 

burden here because the secret restrictions did not, in fact, 

advance the legitimate goals of maintaining pedestrian flow and 

safety. Accordingly, I would hold that Baltimore’s restrictions 

fail even Ward’s narrow-tailoring analysis and are, therefore, 

unconstitutional.

IV.

For the foregoing reasons, I would apply the heightened 

standard described in Madsen and conclude that Baltimore’s 

speech restrictions are unconstitutional because they burden 

more speech than necessary to achieve the City’s goals. But 

even under the less rigorous standard described in Ward, I would 

conclude that Baltimore’s restrictions are unconstitutional 

because they burden speech in a manner that does not advance the 

City’s goals. Accordingly, I respectfully dissent.