Cutting v. City of Portland, 2015 U.S. App. LEXIS 16206

Portland, Maine enacted Ordinance §25-17(b) (effective Aug 15, 2013) banning any person from standing, sitting, staying, driving, or parking on any city "median strip," with a narrow crossing exception for pedestrians.
The ordinance defines "median strip" broadly (paved or planted area dividing lanes) and contains no size, location, or traffic-condition limitations.
City enforcement before litigation involved five panhandling-related incidents; the City then voluntarily paused enforcement after three plaintiffs (Cutting, Staley-Mays, Prior) sued under the First Amendment and related statutes.
The District Court found medians are traditional public fora, treated an apparent city exemption for campaign signs as content-based, applied strict scrutiny, and permanently enjoined the ordinance as facially unconstitutional.
The First Circuit affirmed but held the district court erred to the extent it relied on a purported official content-based construction; the panel treated the ordinance as content-neutral and evaluated narrow tailoring, concluding the ban is substantially overbroad and not narrowly tailored to the City’s public-safety interest.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are city medians traditional public fora?	Medians have long been used for political speech, campaigning, solicitation.	(City did not contest on appeal)	Yes; medians are traditional public fora.
Is the ordinance content-based or content-neutral?	City had an "official interpretation" favoring campaign signs, making it content-based.	Ordinance text does not discriminate by message; any enforcement policy cannot make the statute content-based for facial review.	Ordinance is content-neutral for constitutional analysis; court declined to treat purported content-based construction as dispositive.
If content-neutral, is the ordinance narrowly tailored to a significant governmental interest (public safety)?	Banning presence on all medians is necessary to prevent hazards (distracting drivers; pedestrians struck).	The City: public safety requires an outright ban across all medians.	No; the ordinance is geographically and substantively overbroad, bans substantially more speech than necessary, and the City failed to show it seriously tried less-restrictive alternatives.
Remedy: facial invalidation or narrower relief?	Plaintiffs sought facial and as-applied relief.	City argued narrower tailoring or remand.	The Court affirmed the district court’s permanent injunction invalidating the ordinance on its face (did not sever narrower provisions).

Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939) (defines traditional public fora and historical use test)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time, place, manner test: narrow tailoring to significant government interest and ample alternatives)
McCullen v. Coakley, 134 S. Ct. 2518 (2014) (struck down broad, content-neutral buffer-zone restriction for failing narrow tailoring)
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (distinguishes content-based vs content-neutral regulation)
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (on using governmental constructions to avoid constitutional problems)
Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992) (addresses validity of licensing/fee regimes and standards for saving statutes)
United States v. Salerno, 481 U.S. 739 (1987) (facial-challenge standard outside First Amendment context)
Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002) (assessing scope of speech covered by ordinance)
Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100 F.3d 175 (1st Cir. 1996) (applying strict scrutiny to content-based restrictions)
McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001) (narrow tailoring requires not burdening substantially more speech than necessary)