McCraw v. City of Oklahoma City, 973 F.3d 1057

Background

Oklahoma City enacted Ordinance 25,777 banning standing, sitting, or remaining on most medians on streets with speed limits ≥ 40 mph; limited exceptions for government work, crossing, emergencies, and authorized landscaping volunteers.
Plaintiffs (panhandlers, political activists/party, news org., joggers) regularly used medians for solicitation, campaigning, protesting, reporting, and personal conversations; the ordinance largely prevented those uses.
The City justified the ordinance on public-safety grounds (vehicle speed, driver distraction); the record contained no accident reports showing pedestrians injured on medians and City witnesses could not identify pedestrian-median accidents.
District court found medians were traditional public fora but upheld the ordinance as a valid time, place, and manner restriction; it dismissed one plaintiff’s (Wilson) First Amendment claim and granted summary judgment to the City on vagueness.
Tenth Circuit reversed the district court’s judgment for the City on First Amendment claims, reinstated Wilson’s First Amendment claim, and affirmed the district court on vagueness and the due-process (freedom-of-movement) claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Forum status of medians	Medians have long been used for expressive activity and are like streets/sidewalks → traditional public fora	Medians differ (speed, volume, design) and are not traditional public fora	Medians are traditional public fora (majority)
Validity as time/place/manner restriction	Ordinance is not narrowly tailored: City produced no evidence of pedestrian-on-median harms, ignored less-restrictive alternatives, and exempted nonexpressive activities → substantial burden on speech	Ordinance is content-neutral, justified by public safety; legislature entitled to deference and may rely on common sense and general safety studies	Ordinance fails intermediate scrutiny: not narrowly tailored, underinclusive, and burdens ample protected speech → violates First Amendment
Wilson’s claim (jogging + conversations)	Stopping on medians to converse is protected communicative activity	Jogging is nonexpressive; any speech is incidental and not protected	Wilson’s communicative stops are protected speech; dismissal reversed
Due process (freedom to remain on medians) & vagueness of “emergency”	Plaintiffs: local freedom of movement is fundamental; “emergency” exception is vague	City: only interstate travel is fundamental; ordinance rationally related to safety; “emergency” has ordinary meaning	No fundamental right to intrastate lingering on specified property (rational-basis review applies) and ordinance survives vagueness challenge as to “emergency”; due-process claim fails

Key Cases Cited

McCullen v. Coakley, 573 U.S. 464 (2014) (narrow‑tailoring requirement for content‑neutral time, place, manner restrictions)
Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37 (1983) (forum analysis: traditional, designated, nonpublic fora)
United States v. Grace, 461 U.S. 171 (1983) (sidewalks and streets as traditional public fora; lack of physical demarcation relevant)
Frisby v. Schultz, 487 U.S. 474 (1988) (public streets as archetypal public fora; forum character informs, but does not change, test)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (standards for content‑neutral time, place, manner restrictions)
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (government must show regulation will alleviate harms in a direct and material way)
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based vs. content‑neutral distinction)
Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212 (10th Cir. 2007) (de novo review and burden to show recited harms are real)
Evans v. Sandy City, 944 F.3d 847 (10th Cir. 2019) (median‑related forum and tailoring analysis; narrow bans on small medians upheld)
McClure v. Ind. Sch. Dist. No. 16, 228 F.3d 1205 (10th Cir. 2000) (de novo review of due process legal conclusions)