546 F.Supp.3d 1227
S.D. Fla.2021Background
- Fort Lauderdale enacted two ordinances: §16-82 (Panhandling Ordinance) banning vocal solicitations in designated areas and prohibiting "aggressive panhandling" citywide; §25-267 (Right-of-Way Ordinance) banning sales, solicitations, and hand-to-hand exchanges on specified arterial rights-of-way and incorporating sign rules; violations carry fines and jail.
- Plaintiffs Mark Messina and Bernard McDonald panhandle and hold signs on sidewalks/medians; they allege repeated police harassment, threats of arrest, and observed arrests of others, and say they curtailed speech out of fear.
- Plaintiffs sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief and moved for a preliminary injunction; the City moved to dismiss for lack of standing (no arrests/citations of plaintiffs).
- The court found Article III standing for a pre-enforcement facial challenge (First Amendment chill is plausible), denied the motion to dismiss, and solicited supplemental briefing on certain ordinance provisions.
- After a hearing and briefing, the court concluded plaintiffs are likely to prevail on the merits and granted a preliminary injunction barring enforcement of §§ 16-82 and 25-267.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §16-82 is content-based and thus subject to strict scrutiny | §16-82 bans vocal solicitations for donations (a specific topic) while allowing other speech; therefore content-based and unconstitutional | Ordinance is content-neutral because it permits passive solicitation (signs, singing) and targets conduct, not message | Court: §16-82 is content-based under Reed and likely fails strict scrutiny; plaintiffs likely to prevail |
| Standing to challenge "aggressive panhandling" provisions | Plaintiffs intend to panhandle in ways plausibly falling within aggressive-panhandling definitions and reasonably fear prosecution based on police threats and arrests of others | City contended plaintiffs lack standing because they have not engaged in the specific aggressive conduct | Court: Plaintiffs have Article III standing for facial challenge to aggressive-panhandling provisions; credible fear and arrests of others suffice |
| Whether §25-267 (Right-of-Way) is content-based; and whether hand-to-hand clause is content-neutral | First two clauses (selling/advertising; seeking donations) regulate specific communicative content on rights-of-way and are content-based; hand-to-hand exchange clause is content-neutral and subject to intermediate scrutiny | City contends the whole provision is a location/interaction rule (not content-based) and that hand-to-hand ban advances traffic safety | Court: Text shows first two clauses are content-based and likely fail strict scrutiny; hand-to-hand clause is content-neutral but City failed to justify it with evidence and less-intrusive tailoring, so plaintiffs likely to prevail |
| Whether §25-267(d) (incorporation of sign rules) applies to public rights-of-way and is enforceable against sign-holding solicitors | Provision unambiguously incorporates sign rules into right-of-way regulation and has been enforced against public sign-holders | City argued it primarily targeted private-property signage and claimed officers would be instructed not to enforce on public rights-of-way | Court: §25-267(d) applies to public rights-of-way as written; City failed to disavow enforcement or defend the provision, so enforcement was enjoined |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (establishes when a law is content-based and subject to strict scrutiny)
- McCullen v. Coakley, 573 U.S. 464 (intermediate scrutiny for time/place/manner; government must consider less-intrusive alternatives and show narrow tailoring)
- Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620 (charitable solicitation is protected speech)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (pre-enforcement standing doctrine for First Amendment challenges)
- Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (overbreadth and third-party rights in facial challenges)
- Rodgers v. Bryant, 942 F.3d 451 (enjoining panhandling restrictions as content-based post-Reed)
- Norton v. City of Springfield, 806 F.3d 411 (post-Reed analysis finding panhandling restriction content-based)
- Indiana Civil Liberties Union Found., Inc. v. Superintendent, 470 F. Supp. 3d 888 (preliminarily enjoining a panhandling law similar to Fort Lauderdale's)
- McLaughlin v. City of Lowell, 140 F. Supp. 3d 177 (invalidated panhandling and aggressive-panhandling provisions)
- Browne v. City of Grand Junction, 136 F. Supp. 3d 1276 (struck down panhandling restrictions as overbroad/poorly tailored)
- KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (loss of First Amendment freedoms constitutes irreparable injury for injunctions)
- Ashcroft v. ACLU, 542 U.S. 656 (government bears burden to justify restrictions and less-restrictive alternatives)