Judge rules Portland ordinance banning panhandlers, others from median strips is unconstitutional

Zachary Heiden, legal director of the ACLU of Maine, fields questions from reporters after a daylong trial in federal court in Portland last year.
Zachary Heiden, legal director of the ACLU of Maine, fields questions from reporters after a daylong trial in federal court in Portland last year. Buy Photo
Posted Feb. 12, 2014, at 3:14 p.m.
Last modified Feb. 12, 2014, at 5:05 p.m.
Kelly Noble panhandles in the median strip on the corner of St. John Street and Park Avenue in Portland in 2012.
Kelly Noble panhandles in the median strip on the corner of St. John Street and Park Avenue in Portland in 2012. Buy Photo

PORTLAND, Maine — A federal judge ruled Wednesday that a Portland ordinance prohibiting panhandlers — and anyone else — from standing on city median strips infringes on the public’s constitutional right to free speech and must be thrown out.

The American Civil Liberties Union of Maine helped bring the lawsuit against the city on behalf of three Portland residents, two who had used median strips to hold political signs and one who stood in the narrow traffic dividers to ask for money from passing drivers.

City councilors who approved the ordinance in July said the rule was necessary for safety reasons, pointing to drivers’ complaints of median strip panhandlers acting aggressively or nearly falling into the paths of oncoming cars.

“Safety has always been our primary concern,” said Police Chief Michael Sauschuck in a Wednesday afternoon statement. “Although we were hoping for a different outcome, we will certainly abide by the judge’s decision.”

Opponents of the measure have long argued the ordinance was simply a veiled attempt to move signs of poverty away from the city’s high-visibility locations, as well as the potential tourists and shoppers who might be passing them.

“Today’s decision is an important victory for freedom of speech, and for all people who use public spaces to communicate with their fellow citizens,” said Zachary Heiden, legal director for the ACLU of Maine, in a statement. “The First Amendment protects all of us, no matter what views we hold or how much money we make.”

U.S. District Court Judge George Z. Singal wrote in his decision that the city’s statement it would allow people to stop temporarily along median strips to place campaign signs during election seasons undermined its claims of safety interests.

He also agreed with ACLU arguments that the city could achieve its stated safety goals without restricting constitutional freedoms, by instead more strictly enforcing pre-existing laws against assault, aggressive panhandling and disorderly conduct — or by enacting a more specific ordinance prohibiting drunkenness on the median strips.

“The city’s safety justification does not correspond to the favoring of campaign messages over all others. … Instead, on its face, the ordinance, as officially interpreted, is a content-based restriction on free speech,” Singal wrote, in part.

“[T]he ordinance fails to pass constitutional muster because the ordinance is not absolutely necessary to serve the state’s asserted interest in public safety,” the judge continued. “In order to keep the public safe, it is not necessary to allow individuals to transit the City’s medians in order to place or remove campaign signs.”

City attorney Danielle West-Chuhta said in a statement Wednesday afternoon that Portland officials respect the court’s decision, but “are of course very disappointed.”

“I am not able to respond in detail at this time as we have not had an opportunity to fully review the judge’s ruling and are still in the process of determining next steps including whether or not to appeal the decision,” she said.

Attorney Kevin Martin, who with the Boston law firm Goodwin Procter partnered with the ACLU in representing the three residents, said Singal’s ruling serves as a warning to municipalities “that courts are going to very closely scrutinize their justification and scope” in ordinances like Portland’s.

“Ordinances like this have been appearing all over the country, but most courts have agreed that they are far too burdensome on the fundamental right to free expression,” said Martin in a statement.

Oral arguments in the case were made during an accelerated one-day trial in November, and final written arguments were filed last month.

The plaintiffs in the case were Alison Prior, an unemployed, homeless woman who uses the median strips for panhandling, as well as political demonstrators Wells Staley-Mays and Michael Cutting.

Before Wednesday’s ruling, officials in Lewiston and Bangor had considered similar measures.

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