(CN) — The city of Albuquerque asked the 10th Circuit on Tuesday to support a ban on pedestrians along road medians, which a lower court struck down as a First Amendment-violating ban on panhandling.
The Albuquerque City Council passed the ordinance in November 2017, which prohibits pedestrians from standing or assembling on streets, medians, highway on- and offramps and major intersections. The ban also prohibits pedestrians from talking to drivers and vice versa.
Several citizens sued the city in January 2018, including a woman who solicits donations from drivers as well as two people who regularly donate food and money to pedestrians along the road.
“After reviewing the record, it would be disingenuous to pretend that the ordinance is completely unrelated to panhandling,” wrote Senior U.S. District Judge Robert Brack, a George W. Bush appointee, in an August 2019 opinion striking down the rule.
Nevertheless, the city contends the rule is needed to improve road safety in a city where at least 400 pedestrians were hit by vehicles in 2018.
“The city would like to urge the court to consider context in terms of the landscape of First Amendment cases. Roadway safety cases are in a different context and justify erring a little bit more on the side of caution,” said Tim Atler, the Albuquerque attorney representing the city, before the 10th Circuit panel.
U.S. Circuit Judge Jerome Holmes, also a George W. Bush appointee, homed in on the question of why Albuquerque didn’t consider less restrictive means, rather than enacting a blanket ban across the city.
Atler called the less restrictive means analysis a black hole, “inviting limitless possibilities only limited by judicial imagination.” Holmes disagreed.
“One could argue that it does, but why wouldn’t it be part of the obligation to say here are the obvious alternatives and they were insufficient to address the need?” Holmes pressed. “The reply brief seemed to place the onus on the plaintiff to identify less restrictive means, but that’s not their burden.”
Holmes then rephrased and redirected the question to attorney Jaime Santos, of the D.C. firm Goodwin Procter presenting the plaintiffs opposing the panhandling restriction.
“The antecedent point I’m trying to get at is whether you need to consider these least restrictive alternatives at all,” Holmes said.
Santos said when it comes to any rule restricting the First Amendment, alternatives should always be considered.
“The consideration of alternatives is not a process requirement. It’s not about saying if the city satisfied A, B, C, and D, then it can enact a speech ban,” Santos said. “What that entire requirement is supposed to get at is what the Supreme Court said in Thompson, which is if the First Amendment means anything, it means that regulating speech must be a last, not a first resort.”
Santos said the overbroad rule eliminates an important public forum used for free expression.
“By invoking these design guidelines and saying essentially that if a particular part of the roadway is not designed for pedestrians to stand in, then we can altogether prohibit pedestrians from using these locations and using them for free expression, then the impact is essentially the same allowing the city to de-designating a public forum by government fiat,” Santos said.
U.S. Circuit Judges Robert Bacharach and Nancy Moritz, both appointed by Barack Obama, rounded out the panel. They did not indicate when or how they will decide the case.