Robert Reynolds v. Douglas Middleton
2015 U.S. App. LEXIS 2704
4th Cir.2015Background
- Henrico County amended an ordinance to prohibit distributing handbills, soliciting contributions, or selling to drivers or passengers "while in the highway," with "highway" defined to include medians and shoulders. Sidewalks remain available.
- Robert Reynolds, a homeless roadway solicitor, challenged the Amended Ordinance as violating the First Amendment; the district court granted summary judgment for the County and denied Reynolds’ motion. Reynolds appealed.
- County officials (notably the Police Chief) cited an increase in median solicitation and citizen complaints and asserted safety and traffic-flow concerns; they provided calls-for-service totals but no empirical accident data linking solicitation to injuries.
- The Fourth Circuit recognized that (1) solicitation is protected speech and (2) streets/medians are traditional public forums, so a content-neutral time, place, and manner restriction must survive intermediate scrutiny (narrow tailoring to a significant interest; leave open ample alternatives).
- The Court held Reynolds made the threshold showing that his speech was restricted, shifting the burden to the County to justify the ordinance under intermediate scrutiny; it applied McCullen v. Coakley to clarify the evidentiary showing required.
- The Fourth Circuit concluded the County had shown a substantial safety interest (with support from common sense and police testimony) but had not produced evidence that the countywide ban was narrowly tailored — no proof it tried or that alternatives would fail — and vacated and remanded for further factual development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Reynolds met the threshold of restricted protected speech | Reynolds alleged the ordinance prevents him from receiving donations from drivers (verified complaint) | County did not dispute that solicitation is speech but contended intermediate scrutiny need not always require evidentiary record | Reynolds met the threshold; burden shifts to County to justify restriction |
| What burden the County bears under intermediate scrutiny | Reynolds: County must produce evidence that the restriction materially advances safety and is narrowly tailored | County: May rely on common sense, prior cases, and experience; no robust evidentiary showing always required | County must prove narrow tailoring with actual evidence that harms are real and the restriction materially advances the interest (McCullen governs) |
| Whether the Amended Ordinance is narrowly tailored | Reynolds: Ordinance is a sweeping countywide ban though the problem was shown only at busy intersections; alternatives (existing laws) were not tried | County: Ordinance targets dangerous "transactional" roadway speech everywhere; similar danger exists across roads; prior law enforcement insufficient | Not narrowly tailored on the record: County showed localized problems but not countywide harms or attempts to use less-restrictive tools; summary judgment for County vacated |
| Whether ample alternative channels remain | Reynolds: Sidewalks and road edges are inadequate because his audience is drivers and medians uniquely reach them | County: Sidewalks and other public areas are available alternatives | Court did not decide finally (narrow-tailoring failure was dispositive), but found factual disputes about adequacy of alternatives that require remand |
Key Cases Cited
- Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) (panhandling and median speech are protected; medians are traditional public forums)
- Warren v. Fairfax Cnty, 196 F.3d 186 (4th Cir. 1999) (median strips are part of traditional public fora)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (intermediate scrutiny requires evidentiary showing that regulation is narrowly tailored; government must show it tried less intrusive means)
- Ross v. Early, 746 F.3d 546 (4th Cir. 2014) (intermediate scrutiny: regulation must materially advance government interest and leave open adequate alternatives)
- Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012) (where a regulation is materially indistinguishable from upheld rules, extensive new evidence may not be required)
- Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) (city regulations may be invalid if remaining modes of communication are inadequate)
- Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991) (verified complaint can serve as opposing affidavit for summary judgment purposes)
- Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (striking down broad solicitation bans where record did not justify citywide prohibition)