Cutting et al. v. City of Portland, Maine

Ordinance Banning Activity in Medians not Narrowly Tailored
United State Court of Appeals, 1st Circuit, No. 14-1421
Friday, September 11, 2015

The City of Portland, Maine enacted an ordinance that prohibited “standing, sitting, staying, driving or parking on median strips.” A “median strip” was defined as a “paved or planted area of a public right-of-way, dividing a street or highway into lanes according the direction of travel.” In enacting the ordinance, the City cited safety concerns, both for pedestrian traffic on medians and for vehicular traffic on the roads. Three individuals brought a lawsuit, seeking a declaration that the ordinance was unconstitutional because it violated the First Amendment, both “as applied” and “on its face.” The U.S. District Court and the Court of Appeals for the First Circuit ultimately agreed that the ordinance was unconstitutional, but reached the result in different ways.

The Court of Appeals determined that the ordinance was unconstitutional because it was not narrowly tailored. In reaching this conclusion, the Court confirmed that the medians here were traditional public fora—those that historically have been held open for the purposes of assembly and public communication. The Court concluded this based on the fact that the City did not really dispute it, and two other circuit courts had previously held medians to be public fora.

The Court disagreed with the district court’s conclusion that the ordinance was content based. The Court found the ordinance to be content neutral because it restricted speech on the basis of “where it takes place.” It did not “take aim at” or “give special favor to” any particular message.

Therefore, the Court had to review the ordinance under the “intermediate scrutiny test”: whether the ordinance was narrowly tailored to serve a significant governmental interest. Essentially, the “narrow tailoring test” assesses how burdensome the ordinance is in light of the interests it is seeking to promote, asking whether the interests justify the burden. In addition, under this test, a court must look at whether there were less restrictive means that could have been implemented to serve the same interests.

The Court found the ordinance to be overly “encompassing.”  It not only prohibited virtually all activity on median strips, but the definition of “median” was so broad that the prohibitions applied to nearly every median, even those large enough—and consequently safe enough—for pedestrian traffic. Similarly, the ordinance did not consider that traffic patterns, and therefore the safety concerns, may be different in some areas of the City than others, making the prohibition overly broad. In fact, the evidence produced by the City showed that the potential danger to drivers applied to a limited number of median strips. Therefore, the ordinance banned substantially more speech than necessary to serve City’s stated interests, and the burden on speech could not be justified in light of the City’s stated safety concerns.

Finally, the Court determined that there were less restrictive means available for the City to address the true safety concerns: enforcing stricter consequences to laws that prohibit disruptive activities in roadways; prohibiting the types activities that increased the likelihood of danger, like intoxication and belligerent behavior; limiting activities at night; or even limiting the prohibition to just the most dangerous medians in the City.

As a result, the Court held that the ordinance was not narrowly tailored.

Learn More in Court's Decision.