1st Cir. Tosses Portland’s Anti-Panhandling Law

     BOSTON (CN) – Portland, Maine’s anti-panhandling ordinance, which forbids the activity on street medians, is unconstitutional, the First Circuit ruled.
     In an opinion announced on Friday, U.S. Circuit Court Judge David Barron said the law “indiscriminately bans virtually all expressive activity in all of the City’s median strips and thus is not narrowly tailored to serve the City’s interest in protecting public safety.”
     The ruling affirms a 2014 decision by the Federal Court in Portland against the city ordinance, which banned all activity on city medians except for use from pedestrians in the process of crossing the street.
     After a failed attempt to ban panhandling in 2012, the ordinance was passed in 2013 at a time when complaints from residents about panhandlers on medians had increased 23 percent compared with the previous years, court documents says.
     But the marked increase in complaints about panhandlers was only one issue that led to the law’s passage, city officials said. They were also worried about safety hazards created by people who spent hours standing on the medians, particularly those with busy traffic on both sides.
     “Medians put you right in the cross hairs,” Portland Police Chief Michael Sauschuck said during the trial. Sauschuck was an early supporter of the ban and testified in front of the Portland City Council’s Committee on Public Safety, Health and Human Services when the ban was originally considered.
     “The City Council’s motivation for passing the Ordinance was to protect public safety,” wrote Patricia McAllister, attorney for the City of Portland, in a filing in the original federal case.
     The trial court found the ordinance unconstitutional because it made an exception for using medians to plant political campaign signs. In allowing that exception, but not panhandling the ordinance targeted specific speech, the court said.
     In holding the ordinance is indeed unconstitutional, a three-judge panel of the First Circuit also issued an injunction prohibiting the ban’s enforcement.
     “The City may have been motivated by a perfectly understandable desire to protect the public from the dangers posed by people lingering in median strips,” Barron wrote. “But the City chose too sweeping a means of doing so, given the First Amendment interest in protecting the public’s right to freedom of speech.”
     The American Civil Liberties Union of Maine and Goodwin Procter joined Michael Cutting, Wells Staley-Mays and Alison Prior in challenging the ordinance in September 2013.
     Cutting and Staley-Mays used medians for political protests, while Prior used medians to panhandle.
     “This is a really important victory, not only for our clients but for free speech across the country,” said Zachary Heiden, legal director of the ACLU of Maine. “More and more cities and towns are using ordinances like this to try to keep certain people out of public view. This decision is a reminder that those people have First Amendment rights, too.”
     A spokesperson from the City of Portland did not respond to a request for comment.

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