Case Information
*1 Before LUCERO , EBEL , and HARTZ , Circuit Judges.
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LUCERO , Circuit Judge.
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This case concerns the First Amendment rights of citizens in the public square— specifically on medians in public roads. Oklahoma City Ordinance 25,777 prohibits standing, sitting, or remaining for most purposes on certain medians. Okla. City, Okla., Code ch. 32, art. XIII, § 32-458. Plaintiffs are Oklahoma City residents, a minority political party in Oklahoma, and an independent news organization. They use medians to panhandle, engage in protests or other expressive activity, mount political campaigns, cover the news, or have personal conversations. After they were no longer able to engage in such activity due to the ordinance, plaintiffs sued Oklahoma City and its chief of police, William Citty, (together, “the City”) alleging violations of their First and Fourteenth Amendment rights. The district court dismissed plaintiff Trista Wilson’s First Amendment claim; granted summary judgment favoring the City on plaintiffs’ due process vagueness claims; and, following a bench trial, entered judgment against plaintiffs on all other claims. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the court’s entry of judgment favoring the City on plaintiffs’ First Amendment claims; we reverse the dismissal of Wilson’s First Amendment claim; and we affirm on all other claims.
I
A As in many other cities, the medians in Oklahoma City are varied and diverse. They range in length and width: some span an entire city block, others stretch down several car lengths at intersections. Many contain trails, sidewalks, benches, art, large signs, landscaping, or wide-open spaces. One even contains an operating fire station.
In 2015, before the enactment of the ordinance at issue in this case, Oklahoma City’s municipal code prohibited pedestrians from soliciting in roadways without a permit. Pedestrians could apply for a permit to walk from a median or sidewalk into the road to solicit, so long as they did not impede traffic and remained in the road only when cars were stopped at traffic lights. Under this system, political campaigns, panhandlers, and community fundraisers—including firefighters engaged in their annual Fill the Boot campaign for the Muscular Dystrophy Association—engaged in various activities on medians.
In December 2015, the Oklahoma City Council further restricted pedestrian activity on medians. Ordinance 25,283 (“Original Ordinance”) prohibited standing, sitting, or staying on any portion of a median either less than thirty feet wide or located less than two hundred feet from an intersection. Okla. City, Okla., Ordinance 25,283 (Dec. 9, 2015). The ordinance eliminated the prior permit exception for soliciting in roadways, but it allowed access to medians for certain specified purposes, including access by public employees and for emergency uses.
Before its passage, city officials and others pointed to panhandlers as the impetus *4 for the Original Ordinance. The ordinance’s author cited complaints she had received from citizens and businesses regarding panhandling and repeatedly described the Original Ordinance as addressing panhandling. She also stated that her goal was “to help try to find a way to redirect the dollars that are going out windows” back to agencies that provide food and shelter. Before the Original Ordinance was introduced, the City’s municipal counselor informed City officials that the author was working on an ordinance to ban panhandling and soliciting on medians; he recognized the potential unconstitutionality of such a law. Later, at a public hearing regarding the ordinance two weeks after its introduction, the municipal counselor’s office contended it should be viewed as addressing public safety and was “not necessarily about panhandlers.” An assistant city attorney explained that people on medians, regardless of their activity, were in danger and that panhandling would still be permitted on sidewalks and on the side of the road.
At the third and final council meeting regarding the ordinance, Chief Citty gave a presentation. The presentation was originally titled “Panhandler Presentation,” but by the time Chief Citty gave it, its name had been changed to “Median Safety Presentation.” It demonstrated that between January 10, 2010, and September 29, 2015, there were 39,833 collisions citywide. This included 16,358 accidents resulting in injuries or fatalities, of which 76% occurred near intersections. However, it showed no pedestrian-related accidents on medians.
Chief Citty showed slides and photographs of damaged medians and accidents in which vehicles entered or crossed onto the median, but he offered no specific evidence of *5 accidents involving pedestrians on medians. He stated that some of the accidents involved pedestrians but that he did not know the precise number, adding that the number would not be “very high.” He also stated that much of the damage to medians is caused by unreported accidents.
According to Chief Citty, it had been the police department’s position for several years that pedestrian activity on medians was dangerous because of pedestrians’ exposure to traffic moving in different directions. The City Council disagreed about whether these safety concerns justified the Original Ordinance, but it passed by a seven-to-two vote.
Plaintiffs sued, claiming that the Original Ordinance violated their First and Fourteenth Amendment rights. The same month, the City Council amended the city’s Aggressive Panhandling Ordinance, Okla. City, Okla., Code ch. 30, art. XV, div. 2, § 30- 428 et seq., to expand existing panhandling-free zones and to create new ones. The ordinance included a ban on panhandling within fifty feet of any mass transportation stop.
In 2017, after the district court denied the City’s motion for summary judgment without prejudice, the City Council revised the ordinance. Ordinance 25,777 (“Revised Ordinance”), amended the section of the City’s municipal code entitled, “Standing, sitting, or staying on streets, highways, or certain medians.” § 32-458. It outlawed pedestrian presence on medians in all streets with a speed limit of forty miles per hour or more, but exempted government employees and people on the median to cross the street, perform “legally authorized work,” or “respond[] to any emergency situation.” Id. The Revised Ordinance included findings, with citations to a Centers for Disease Control and Prevention (“CDC”) report listing higher vehicle speeds among risk factors *6 for auto-pedestrian crashes and a Federal Highway Administration publication with general statistics regarding the likelihood of fatality for a pedestrian struck by a moving vehicle. Neither report addressed medians in particular. The findings also noted that in 2015, pedestrian deaths accounted for 15% of all traffic fatalities; 90% of the pedestrian deaths were from crashes involving a single vehicle; and 19% of pedestrian deaths were from crashes involving hit-and-run drivers. Without citation, the Revised Ordinance also concluded that people sitting, standing, or remaining on medians “create additional distractions for the operators of motor vehicles using such streets and highways.”
Before the Revised Ordinance was passed, an assistant city attorney told the City Council that the City had conducted further research to determine the highest risk factor for pedestrians who remained on medians for longer than necessary to cross the street. Based on National Highway Traffic Safety Administration (“NHTSA”) statistics, the City determined that vehicles traveling at high speeds caused the most risk. According to the NHTSA, the pedestrian fatality rate in accidents with vehicles traveling at forty miles per hour is 85%, compared to 45% for vehicles traveling at thirty miles per hour and 5% for vehicles traveling at twenty miles per hour. The CDC similarly reported that vehicle speeds increased both the likelihood of pedestrians being struck by a motor vehicle and the severity of injury.
The City solicited the opinion of Master Sergeant Brian Fowler, a fatality investigator for the Oklahoma City Police Department, who observed that in 2015 the Insurance Institute of Highway Safety reported that 54% of pedestrian deaths occurred on large, arterial roadways. He testified that median curbs offer “very minimal” protection *7 when vehicles are traveling at higher speeds, that driver distractions cause pedestrians to be at higher risk, and that pedestrians on medians cause distractions to drivers. Fowler and Chief Citty set forth a descending hierarchy of the riskiest places for pedestrians to be: (1) traffic lanes, (2) medians, and (3) roadsides or sidewalks. Fowler also testified that he believed that the longer a pedestrian remained on a median, the greater the risk. He was unable, however, to quantify the risk or provide any support in safety literature for his opinion.
In response to a request from plaintiffs for all accident reports involving medians or pedestrians, the City produced 504 reports dating from 2012 to 2017. No report involved a pedestrian struck on any median. Out of 39,833 accidents reported from 2010 to 2015, none involved pedestrians on medians. Further, at trial, the City could not identify anyone injured on a median in Oklahoma City or any accident caused by pedestrian activity on a median. Moreover, Fowler admitted that he did not have any research or data to support his conclusion that pedestrians remaining on medians in Oklahoma City are exposed to more risk.
The Revised Ordinance prohibits pedestrians from being on approximately four hundred medians across Oklahoma City. The City asserts that there are at least 103 medians unaffected by the ordinance because they are on roads with speed limits lower *8 than forty miles per hour. [2] Plaintiffs respond that at least 27 of these 103 medians are unavailable to panhandlers and solicitors under the Aggressive Panhandling Ordinance because they are within fifty feet of a bus stop. [3]
B
Plaintiffs are individuals and organizations whose use of the medians has been barred by the Revised Ordinance. Mark Faulk, the chair of the Oklahoma County Democratic Party and a former state legislative candidate, has held campaign signs and taken part in political protests on affected medians. The Oklahoma Libertarian Party has used medians to garner signatures for petitions and to spread its message. Red Dirt Report is a central Oklahoma online daily periodical that uses medians to cover breaking news. Calvin McCraw and G. Wayne Marshall panhandle on medians to pay for food, shelter, medicine, and other necessities. McCraw has also stood on medians to distribute The Curbside Chronicle, a street newspaper.
*9 Trista Wilson and Neal Schindler use the medians when they run. Wilson stops on medians to converse with her jogging companions. Schindler celebrates life and honors those who died in the Oklahoma City bombing by running on medians while training for the Oklahoma City Memorial Marathon.
After passage of the Revised Ordinance, plaintiffs added claims alleging the new law violated their constitutional rights. The district court dismissed their claims challenging the Original Ordinance as moot. It also dismissed Wilson’s First Amendment claim, concluding that she had not alleged that the Revised Ordinance impinged on protected expression. On summary judgment, the court rejected plaintiffs’ Fourteenth Amendment vagueness challenge, holding that the Revised Ordinance’s definition of “emergency” did not render the ordinance unconstitutionally vague. Following a bench trial with live witnesses and deposition designations, the district court rejected the remaining claims. It concluded that “a substantial number of medians subject to the Ordinance qualify as traditional public fora,” but the Revised Ordinance was a valid time, place, and manner restriction under the First Amendment because it was narrowly tailored and provided ample alternative channels of communication. It also rejected plaintiffs’ Fourteenth Amendment due process claim, concluding that there was no fundamental right to intrastate freedom of movement and that the Revised Ordinance passed rational basis review. Plaintiffs appealed.
II
“In a First Amendment case, we have an obligation to make an independent
examination of the whole record in order to make sure that the judgment does not
*10
constitute a forbidden intrusion on the field of free expression.” Citizens for Peace in
Space v. City of Colo. Springs,
A
Because it concluded the Revised Ordinance was a constitutionally permitted time,
place, and manner restriction, the district court entered judgment for the City on
plaintiffs’ First Amendment claims. The First Amendment, applicable to the States under
the Due Process Clause of the Fourteenth Amendment, provides that “Congress shall
make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.” U.S. Const.
amend. I; see also iMatter Utah v. Njord,
B
We agree with the district court that all plaintiffs whose claims proceeded to trial
engaged in protected speech. See McCullen v. Coakley,
(1988) (solicitation of charitable contributions is protected speech); Edenfield v. Fane,
We turn to Wilson, whose claim the district court dismissed as lying outside First Amendment protection. Wilson alleged that she was an “avid jogger” who ran throughout Oklahoma City, including on medians covered by the Original and Revised Ordinances. Because it determined that Wilson had not alleged facts demonstrating that her jogging was expressive activity, the district court concluded she had not alleged that she was engaged in any protected speech as contemplated by the First Amendment. We agree that Wilson has not alleged facts demonstrating that her jogging was expressive activity.
However, Wilson also alleged that she engaged in communicative activities while
out on a run—allegations the district court appears to have disregarded. Specifically, she
described stopping on medians to have personal conversations with her jogging
companions. Even though these conversations may not amount to grand rhetoric or
political soapbox oratory, they are nonetheless protected by the First Amendment. “Most
of what we say to one another lacks religious, political, scientific, educational,
journalistic, historical, or artistic value (let alone serious value), but it is still sheltered
from government regulation.” United States v. Stevens,
The City’s argument that Wilson’s communicative activities are “incidental” to her jogging and do not merit First Amendment protection is merely an attempt to minimize Wilson’s protected speech to such a degree that it is extinguished. Wilson’s communicative activities are distinct from her jogging and therefore subject to the normal constitutional inquiry. Her speech does not lose protection either because she is simultaneously engaged in non-expressive activity or because the City has deemed Wilson’s speech valueless. After all, it would be a boring day if runners would be denied the lingua franca of athletes in training. Accordingly, we reverse the dismissal of Wilson’s First Amendment claim.
C
Under the First Amendment, the extent to which the government may regulate
access to public property depends on the category of forum into which the property falls:
“the traditional public forum, the designated public forum, and the nonpublic forum.”
Verlo,
To determine whether a particular property is a traditional public forum, we look
at “the objective characteristics of the property, such as whether, by long tradition or by
government fiat, the property has been devoted to assembly and debate.” Ark. Educ.
Television Comm’n v. Forbes,
U.S. 788, 802 (1985); Hague v. Comm. for Indus. Org.,
(“Sidewalks, of course, are among those areas of public property that traditionally have
been held open to the public for expressive activities and are clearly within those areas of
public property that may be considered, generally without further inquiry, to be public
forum property.”). Many medians in Oklahoma City, particularly those at intersections,
contain sidewalks. “The typical traditional public forum is property which has the
physical characteristics of a public thoroughfare, . . . [and] which has the objective use
and purpose of open public access or some other objective use and purpose inherently
compatible with expressive conduct.” Warren v. Fairfax Cty.,
Moreover, medians are sandwiched by the uncontested public fora of streets and
sidewalks. In Grace, the Supreme Court found persuasive the lack of a demarcation
between areas traditionally perceived as traditional public fora and those the government
sought to treat as non-public fora.
The City highlights what it characterizes as differences between these
quintessential public fora and medians, citing the speed and volume of passing cars,
among other characteristics. These assertions may support the argument that a time,
place, and manner restriction is constitutional. See, e.g., Cox v. Louisiana,
Because the proximity, speed, and volume of passing cars does not deprive streets
of their status as public fora, they similarly fail to strip medians of that status—after all,
streets are also not intended to have people in them most of the time. We reiterate: if the
street in which those cars are moving is a traditional public forum, so too is the median in
the center of that street. See Satawa v. Macomb Cty. Rd. Comm’n,
(6th Cir. 2012) (holding that given public use for expressive purposes, even a median “in the middle of a busy eight-lane road, with a fifty mile-per-hour speed limit . . . [o]n balance, . . . [was] a traditional public forum”).
Perhaps more significantly, the record demonstrates a “long tradition” of expressive activity occurring on Oklahoma City’s medians. The record is replete with examples of speech occurring on medians, from firefighter charity drives to protests to political campaign signs. Testimony demonstrated that these activities have occurred for a long time, with plaintiffs stating that the firefighters used medians “[a]s long as I can remember;” that political signs were erected on medians for “probably 40 years” and had “gone on forever;” and that people had stood on medians on Election Day since the early 1970s. The City attempts to minimize this tradition of expressive activity by distinguishing between use for expressive activity “for years,” and use “for time out of mind.” We decline to specify the precise number of years it takes to create a “long tradition” of expressive activity. Suffice it to say that testimony that such expression has occurred for as long as witnesses can remember is enough evidence of tradition.
The City responds that it neither intended to create a public forum for expression,
nor invited the public to use the medians for expression. Although these considerations
are not irrelevant, we note that the question put to us is “whether, by long tradition or by
government fiat, the property has been devoted to assembly and debate.” Ark. Educ.
Television Comm’n,
Further, the Oklahoma City Municipal Code itself defines streets to include
medians. Okla. City, Okla. Code ch. 32, art. I §§ 32-1(29), (59). And under Oklahoma
law, “[t]he title to streets, roads and public ways within the limits of a municipality which
have been dedicated and accepted by the municipal governing body is held by the
municipality in trust for public use and enjoyment.” Okla. Stat. tit. 11, art. XXXVI, § 36-
101. The City cannot now remove medians’ public fora status by fiat. See First
Unitarian Church,
We hold that Oklahoma City’s medians are traditional public fora. See Reynolds,
2015) (holding that Portland’s medians were traditional public fora “on the understanding that . . . the people of Portland have used median strips for expressive purposes in much the same way that they have used parks and sidewalks”); Ater v. Armstrong, 961 F.2d 1224, 1226-27 (6th Cir. 1992) (in a challenge to a restriction from distributing literature on medians and streets, analyzing medians and streets together to hold that the county’s streets were traditional public fora).
D
Having concluded that medians are public fora, we analyze the Revised
Ordinance’s validity under the time, place, and manner framework. “It is well-settled
that even in a public forum the government may impose reasonable restrictions on the
*20
time, place, and manner of protected speech, provided the restrictions are justified
without reference to the content of the regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that they leave open ample alternative
channels for communication of information.” Evans,
Plaintiffs argue that we should apply strict scrutiny because the Revised Ordinance
discriminates based on content. We need not reach this argument. As discussed below,
we ultimately conclude the Revised Ordinance fails even intermediate scrutiny. Because
it would necessarily also fail strict scrutiny, we assume for the purposes of our analysis
that the Revised Ordinance is content-neutral. See Reed,
1
“For a content-neutral time, place, or manner regulation to be narrowly tailored, it
must not burden substantially more speech than is necessary to further the government’s
legitimate interests.” McCullen,
of de novo review” and evaluate the record as a whole to ensure that a “forbidden
intrusion on the field of free expression” has not occurred, Citizens for Peace in Space,
When we examine the evidence the City offers in support of the Revised
Ordinance, we conclude that the City’s evidence is insufficient to demonstrate that the
City’s “recited harms are real” or that the Revised Ordinance “will in fact alleviate these
harms in a direct and material way.” Citizens for Peace in Space,
*23 pedestrians on medians in Oklahoma City is an actual issue, as opposed to a hypothetical concern. There is neither evidence of any accident involving a pedestrian on a median, fatal or not, nor evidence that a pedestrian on a median caused an accident or distracted a driver enough to compromise the safety of the pedestrian or the driver.
Further, although city officials identified pedestrian presence on medians as one of
their highest concerns, they were unable to identify any accidents in which a pedestrian
on a median was involved. Fowler testified that in his career, he had seen “a couple
hundred” vehicles on medians, although he could neither identify any data, reports, or
other evidence to support that estimate, nor describe any involvement of pedestrians in
these anecdotes. Even if, as the City asserts, there is an increasing number of pedestrians
on medians, there is no objective evidence that these pedestrians are getting hurt or
hurting others. If medians present the danger that the City argues they do, we are baffled
as to why there is no “impersonal hard evidence” of harm arising from their presence.
See Aptive Envtl.,
In contrast, plaintiffs, who apparently spend significantly more time on medians *24 than do any city officials, presented evidence demonstrating that they feel safer on medians than on sidewalks. They testified that cars move slowly at the portions of medians on which they stand. They also testified that their chosen medians are wide and protect them from encroaching cars. Drivers testified that they were more aware and drove more safely both when approaching intersections—where plaintiffs are more likely to stand—and when around pedestrians on medians. And the City’s chief traffic engineer testified that there is a “safety zone” for pedestrians eighteen inches beyond a curb that gives a driver adequate time to regain control of a vehicle after hitting the curb. There is also evidence that most pedestrian fatalities occur at “mid-block” locations—but again, not on medians—whereas plaintiffs testified they prefer to stand at the ends of medians, close to intersections.
The City contends that the government is entitled to prevent anticipated harms and
that its predictive judgments are entitled to substantial deference. It further argues that it
may rely on reasonable inferences drawn from substantial evidence to support its
legislative conclusions and that it may rely on common sense rather than empirical
studies or data to support its assessment of the harm. It is true that municipalities remain
free to determine what type of evidence they will use to support proposed remedial
regulations, and there is no constitutional requirement that governments “compile data or
statistics” in particular. Evans,
Nevertheless, the City’s prerogative to determine how to support a regulation does
not extinguish its burden “to show that its recited harms are real.” See Citizens for Peace
in Space,
(holding Castle Rock’s anecdotal and “common sense” evidence to be “woefully
insufficient” when compared to similar evidence held sufficient in Florida Bar v. Went
For It, Inc.,
(deeming Castle Rock’s evidence “woefully insufficient” because “Castle Rock has
provided us no studies, no supportive evidence-based findings, and no survey results” and
“there [wa]s no evidence that commercial solicitors are the source of any public-safety
problems”). We therefore conclude that the City has not met its burden to demonstrate
that its interest is based on a concrete, non-speculative harm. See Citizens for Peace in
Space,
2
For a regulation to be narrowly tailored, it must not only promote “a substantial
government interest,” but that interest must “be achieved less effectively absent the
regulation, and . . . not burden substantially more speech than is necessary to further the
government’s legitimate interests.” Verlo,
To evaluate this fit, we begin by reviewing the evidence the City uses to support the “means,” i.e., the restrictions imposed by the Revised Ordinance. Our evaluation of this evidence reveals many of the same weaknesses we identified when analyzing whether the City’s evidence met its burden to show the existence of a real, non- conjectural harm. The fundamental problem is that the City has presented no evidence of concrete harm arising from the presence of pedestrians on its medians. This failure infects our analysis of both the “ends” and the “means.”
Chief Citty and Fowler testified that in their opinion, pedestrians are in danger
near roadsides, including on medians. They identified medians as the second most
*27
dangerous place for pedestrians, after traffic lanes, because medians expose pedestrians
to traffic on both sides. To justify the Revised Ordinance’s applicability to medians on
streets with speed limits above forty miles per hour, the City presented information about
the relative risk of fatalities in auto-pedestrian accidents given different vehicle speeds. But not only did this generic “speed kills” evidence not address medians, it also did not
address any other factor, including the relationship between fatalities and the width or
composition of medians, which we held relevant in Evans.
The Revised Ordinance places a severe burden on plaintiffs’ speech. In Evans, we concluded that the ordinance’s burden on speech was minimal because had Evans—the plaintiff in that case—stood ten feet farther down the same median, he would have been in compliance with the ordinance. Id. at 857. Under those circumstances, we held that Evans had not shown that a ten-foot difference substantially burdened his speech. Id. There is no similarly simple solution for plaintiffs in this case. The Revised Ordinance entirely prohibits plaintiffs’ presence on the more than four hundred affected medians. They cannot walk mere feet down a median to reach a legal standing spot. Instead, they *28 must leave the median and either stand on a roadside or sidewalk or travel to an unaffected median on a different block.
Moreover, the fact that plaintiffs may still engage in their speech on roadsides,
sidewalks, or other medians does not mean that their speech is not burdened by the
Revised Ordinance. See McCullen,
3
In light of the severity of this burden, the City has failed to demonstrate that less
burdensome alternatives would not achieve its interest in median safety. As the City
acknowledges in its brief, under McCullen, “the government must demonstrate that
alternative measures that burden substantially less speech would fail to achieve the
government’s interests, not simply that the chosen route is easier.”
Plaintiffs propose several alternatives that would be less burdensome on speech but would still advance the City’s asserted interest in median safety. These include specifying times during which pedestrians can stand on medians, limiting the Revised Ordinance’s application to the most dangerous intersections, requiring pedestrians to stand more than eighteen inches back from the curb, or applying the ban to careless or negligent behavior.
The City dismisses each option out of hand. It asserts it cannot limit the Revised
Ordinance’s application to certain times because “pedestrian accidents occur at all times
of day.” Although this may be true, the record evidence demonstrates that these
accidents certainly are not equally distributed throughout the day. For example, the
City’s evidence demonstrates that “pedestrian collisions are highest in hours where the
sun has set or is setting.” Again, in addition to the fact that these collisions are not
*30
related to medians, a cursory statement implying that a time-based restriction would not
stop all pedestrian injuries does not sufficiently demonstrate that the City “seriously
undertook to address the problem with less intrusive tools readily available to it.”
McCullen,
The City further states it cannot apply the Revised Ordinance only to dangerous intersections because six months of data—in contrast to the twelve-plus years of data in the record—demonstrate that the dangerousness of intersections can vary over time. But the City has already identified the intersections where fatalities have occurred since at least 2003, and it provides no argument as to why targeting only these intersections would fail to achieve its interest. Similarly, a city planning report, adopted by the City Council and introduced by plaintiffs at trial, identifies the intersections at which auto- pedestrian accidents most frequently occurred from 2003 to 2015, and the times of day— early to mid-evening—when accidents were most frequent. Perhaps this data correlates to a street’s speed limit; perhaps not. But we can say for certain there is no evidence in the record that the City considered any such correlation in creating its median ban. Given that the City has at its disposal information regarding the relative safety of its medians at different times and in different locations, its failure to consider alternatives is especially harmful to its argument. The data supports numerous alternatives to a total ban on *31 presence on affected medians—the “easier” (and far more burdensome to speech) alternative that was selected by the City. [17]
As for plaintiffs’ proposal that the City require pedestrians to stay further than eighteen inches back from the curb, the City summarily responds that vehicles could travel further than eighteen inches. But it offers no evidence of the frequency with which vehicles travel further than eighteen inches, does not account for the fact that its own bus stops are placed at that distance from the curb, and disregards the testimony of its own chief traffic engineer that the eighteen-inch distance provides a “safety zone” for pedestrians. [18]
We also note that as in McCullen, the City has existing laws that could advance its
interest in pedestrian safety on medians. For example, one law prohibits people from
stepping into the street. City officials dismissed this alternative, stating that “it’s very
*32
hard for the police to be there when [a person] actually step[s] off.” But ease of
application is not a sufficient reason to burden First Amendment rights. See McCullen,
In addition to our conclusion that the City has not demonstrated that pedestrian
presence on medians is a concrete, non-speculative problem, we also conclude that the
City’s summary dismissal of alternatives is insufficient. “[G]iven the vital First
Amendment interests at stake, it is not enough for [the City] simply to say that other
approaches have not worked.” McCullen,
4
The underinclusive nature of the Revised Ordinance also demonstrates at best a loose fit between its means and the City’s safety interest. Under the Revised Ordinance’s exception for legally authorized work, the City permits a non-profit named OKC Beautiful to landscape its medians. Through OKC Beautiful, volunteers from private businesses and organizations may stand, sit, or otherwise stay on medians to landscape the medians for the City and, in return for their services, install signs on the medians publicizing the entity’s sponsorship.
Therefore, at the same time as OKC Beautiful volunteers of all ages are permitted
to remain on medians for substantial periods of time, the City entirely bars plaintiffs’
presence. Surely if it is safe for volunteers to be on the medians long enough to beautify
them, it is also safe for plaintiffs to be on the medians for similar periods of time. But the
Revised Ordinance only allows for the volunteers’ activities, not for plaintiffs’ protected
expression. The City provides no real answer to this discrepancy, stating only that “[a]
regulation is not otherwise objectionable simply because it doesn’t address all potential
problems.” But on this record, plaintiffs’ expression is protected by the First
Amendment, whereas the volunteers’ beautification efforts are not. See Williams-Yulee
v. Fla. Bar,
5
We conclude that the Revised Ordinance is not narrowly tailored to the
problem it purports to address. The City has utterly failed to demonstrate the
requisite “‘close fit between ends and means’ to ensure speech is not sacrificed for
efficiency.” Evans,
E
Although “the First Amendment does not guarantee the right to employ every
conceivable method of communication at all times and in all places, a restriction on
expressive activity may be invalid if the remaining modes of communication are
inadequate.” Evans,
In this case, the parties’ dispute regarding this inquiry is one of amount. The City
argues that plaintiffs have not been “completely foreclosed” from either using medians or
engaging in their chosen speech, whereas plaintiffs argue that the lack of viable
communicative spaces means that ample alternative channels do not exist. We agree with
plaintiffs. A valid time, place, and manner restriction “leave[s] open ample alternative
channels of communication.” Frisby,
Although we have recognized that “[c]itizens do not have a right to convey their message in any manner they prefer, . . . they [do] have a right to convey their message in a manner that is constitutionally adequate.” Citizens for Peace in Space, 477 F.3d at 1226. For plaintiffs such as charitable solicitors, political campaigners, protestors, or *37 panhandlers who engage with passing cars—or, more realistically, with their drivers—the record does not support the district court’s conclusion that moving to a sidewalk is an adequate alternative. Record evidence showed that for many of these plaintiffs, communications from sidewalks and roadsides would not provide adequate alternative opportunities for communication. Signs and communications from the sidewalk would not be as visible to those in cars, and plaintiffs would have to compete with a jumble of other signs and messages from storefronts. And, for those seeking to hand out material or seeking to solicit funds—all of which we have held to be expressive activity—neither roadsides nor sidewalks would provide safe and direct access to the driver, who often will be a car’s only occupant. Rather, solicitors must step into the road to close the distance between drivers and themselves, making exchanges from roadsides more difficult and dangerous than those from medians. As one councilman noted while deliberating the ordinance, “it’s the entry into the street which is where all the violent impact occurs.”
Plaintiffs are also out of the sightline of drivers when on sidewalks. As plaintiff
politician Faulk testified, a sidewalk is “just not as effective” because “if you have eight
to nine lanes of traffic and you’re standing on a street corner, you’re only reaching the
traffic right next to you, and so maybe you see two lanes of traffic and they see what
you’re holding up.” In contrast, “[i]n the median, you catch traffic coming from all four
directions and you catch traffic from every lane in each direction. So you may be
reaching as many as 16 lanes of traffic sometimes.” Just as in real estate, location matters
in some constitutional questions. Cf. McCullen,
Further, record evidence demonstrates that there are “an extremely limited
number” of medians unaffected by the Revised Ordinance on which plaintiffs can engage
in their expression. According to the City, there are only 103 unaffected medians, in
contrast to approximately four hundred affected ones. And by the district court’s own
estimate, fewer than eighty of those 103 are accessible to plaintiff McCraw, plaintiff
Marshall, and other panhandlers due to the Aggressive Panhandling Ordinance. Plaintiffs
testified that “[i]t’s getting hard to find a spot” because “[t]here’s just not that many
places for panhandlers and Curbside vendors to be.” Competition for the few remaining
unaffected medians is “fierce” and even violent, inhibiting plaintiffs’ ability to use them. Moreover, even if a plaintiff is lucky enough to secure a spot, unaffected medians can be
significantly less effective at conveying speech because fewer vehicles are present. This
evidence distinguishes this case from our decision in Evans, where we concluded that
Evans did not “distinguish his ability to communicate with his target audience on affected
or unaffected medians” and failed to demonstrate why a legal position ten feet down a
median was constitutionally inadequate.
F
For the above reasons, we conclude that the City has not met its burden to demonstrate that the Revised Ordinance is a constitutionally permissible time, place, and manner restriction. We therefore hold that the Revised Ordinance violates the First Amendment.
III
Turning to plaintiffs’ due process claims, we first consider the district court’s dismissal of the claim that the Revised Ordinance violates their fundamental right to move or linger in traditionally open public places.
In addition to the explicitly recognized right to interstate travel, the Supreme Court
has hinted at a right to freedom of local movement. In City of Chicago v. Morales, 527
U.S. 41 (1999), a three-judge plurality noted that “it is apparent that an individual’s
decision to remain in a public place of his choice is as much a part of his liberty as the
freedom of movement inside frontiers that is a part of our heritage or the right to move to
*40
whatsoever place one’s own inclination may direct[,] identified in Blackstone’s
commentaries.” Id. (plurality) at 54 (citations and quotations omitted); see also Kent v.
Dulles,
Several of our sibling circuits have explicitly held that a fundamental right to the
freedom of movement exists. See Johnson v. City of Cincinnati,
We have previously concluded that the fundamental right to freedom of movement
“appl[ies] only to interstate travel.” D.L. v. Unified Sch. Dist. No. 497,
776 (10th Cir. 2010). In D.L., plaintiffs’ claim that their fundamental right to travel was infringed by their expulsion from a public school for non-residency failed because “the travel that Plaintiffs claim was restricted was intrastate travel.” Id. Under D.L., plaintiffs’ argument that they have a fundamental right to remain on Oklahoma City’s medians—a purely intrastate location—similarly fails. Although plaintiffs raise out-of- circuit decisions and Supreme Court dicta to support their claim, “[w]e must generally follow our precedents absent en banc consideration.” United States v. Lira-Ramirez, 951 F.3d 1258, 1260 (10th Cir. 2020).
Concluding that plaintiffs do not have a fundamental right to remain on the City’s
medians, we analyze their due process claim under rational-basis review. To satisfy this
test, the Revised Ordinance “need only be rationally related to a legitimate government
*42
purpose.” Powers v. Harris,
IV
Finally, we consider plaintiffs’ claim that the Revised Ordinance is
unconstitutionally vague, on which the court granted summary judgment to the City.
“The void-for-vagueness doctrine requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” United States v. Hunter,
The Revised Ordinance exempts “[i]ndividuals responding to any emergency situation.” § 32-458(e)(4). We hold that the term “emergency,” as used in the Revised *43 Ordinance, is not unconstitutionally vague. An “emergency” is commonly understood to mean “an unforeseen combination of circumstances or the resulting state that calls for immediate action;” “an urgent need for assistance or relief,” Emergency, Merriam- Webster, https://www.merriam-webster.com/dictionary/emergency (last visited June 24, 2020); “[a] juncture that arises or ‘turns up;’” or “a state of things unexpectedly arising, and urgently demanding immediate action,” Emergency, Oxford Eng. Dict. https://www.oed.com/view/Entry/61130?redirectedFrom=emergency#eid (last visited June 24, 2020).
We do not mean to minimize the importance of plaintiffs’ proposed scenarios or
their real need to stand on medians, but we conclude there is a readily discernible
difference between, on the one hand, “a candidate campaigning in an unexpectedly close
election, an activist protesting an unforeseen event, a panhandler soliciting for
unexpected expenses, a reporter covering breaking news, or a jogger responding to a text,
call, cramp, or untied shoelace,” and on the other hand, someone having to stand on a
*44
median due to an emergency. Dictionary definitions underscore the immediacy and
urgency of an emergency. And we conclude that an ordinary person would know that the
above scenarios do not require action that is sufficiently immediate and urgent to
constitute an emergency, and therefore, an exception to the Revised Ordinance. The
Revised Ordinance thus “conveys sufficiently definite warning as to the proscribed
conduct when measured by common understanding and practices.” Roth v. United
States,
V
We REVERSE the district court’s dismissal of Wilson’s First Amendment claim and its entry of judgment for the City on all plaintiffs’ First Amendment claims, and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s grant of summary judgment to the City on plaintiffs’ vagueness claim and its entry of judgment for the City on plaintiffs’ freedom of movement claim.
19-6008 – McCraw v. Oklahoma City
HARTZ , J ., Circuit Judge, concurring
Although I cannot agree with some of the language in the majority opinion and some of the statements in it that are unnecessary to decide this case, I do agree with the holding.
First, I agree that as a general rule medians should be treated as public fora for First Amendment purposes. I would be open to argument that an exception should be made for the narrowest medians, which are clearly not designed for people to stand on or congregate. But that issue need not be resolved now.
Second, I agree that the City has failed to show that its ordinance is narrowly tailored to serve a significant governmental interest. The City has singularly failed to support its ordinance with either data or expert reasoned opinion. The purported government interest is public safety. But a number of years of relevant data failed to support the claimed danger. I am not saying that such data are necessary to support a claim of danger. Common sense and expert opinion may well suffice. But when there are data available, and they contradict what common sense and expert opinion may tell us, courts must be cautious before endorsing a governmental claim of danger.
Exercising that caution, I cannot see that the ordinance is narrowly tailored. I
would be inclined to be quite deferential to an ordinance that prohibits standing or
congregating only on narrow medians, or portions of medians, that bordered
thoroughfares with relatively high speed limits, since the proximity and exposure to the
traffic could lead to tragedy if the pedestrian on the median or a driver on the
*46
thoroughfare is distracted or otherwise negligent.
See Evans v. Sandy City
,
Notes
[1] The parties stipulated that a legal intern personally verified the physical existence and location of each of the 406 medians on the list plaintiffs introduced at trial.
[2] The parties dispute the application of the Revised Ordinance to the medians along Lincoln Boulevard, which is also State Highway 0. The district court concluded that because the Lincoln Boulevard medians were under the direct control of the State, not the City, they were unaffected by the ordinance. Plaintiffs argue that the City maintains control of the Lincoln Boulevard medians because it has municipal jurisdiction to “[r]egulate and control the use of streets, roads and other public ways within the limits of the municipality,” Okla. Stat. tit. 11, art. XXXVI, § 36-101(1), further evidenced by the fact that it grants a right-of-way along Lincoln Boulevard and its medians for the annual Oklahoma City Memorial Marathon. Because it is not dispositive of our analysis, we note the dispute but do not decide whether the Revised Ordinance applies to Lincoln Boulevard’s medians.
[3] Plaintiffs do not address whether any of the remaining 76 unaffected medians would be unavailable to panhandlers under other provisions of the Aggressive Panhandling Ordinance.
[4] Pursuant to our obligation, we have reviewed the entire record and base our analysis and conclusions on our review. However, we note that this obligation does not excuse the parties from their requirement under Federal Rule of Appellate Procedure 28 to cite to the “parts of the record on which [they] rel[y] . . . .” Fed. R. App. P. 28(a)(8)(A), (b).
[5] Although the district court dismissed Wilson’s claim prior to summary judgment and trial, Wilson submitted an affidavit and designated deposition in support of the remaining plaintiffs’ case. She thus had a full and fair opportunity to
[6] The City also argues that its medians lack benches, sidewalks, trails, or other amenities that would render them similar to parks. Although the record shows many medians with those amenities, albeit on streets with lower speed limits, the City’s distinction does not account for the similarities between medians and the streets in which they lie.
[7] We declined to answer this question in Evans because it was not
determinative. Sandy City’s ordinance was a valid time, place, or manner regulation
and therefore met the requirements for a law restricting speech even in a public
forum.
[8] Our independent examination of the record reveals troubling evidence of
animus against panhandlers in the passage of the Original and Revised Ordinances.
But because we conclude that the City’s Revised Ordinance fails even intermediate
scrutiny, we are not required to delve into whether its ostensible content-neutrality is
instead camouflage for the City’s desire to sacrifice speech in order to ban unpopular
panhandling. See McCullen,
[10] Although a government’s interest in public safety is clearly significant, see
McCullen,
[11] The City has provided ample evidence of citizen complaints about panhandling across the City, including instances of panhandlers stepping into the streets, but these complaints do not meet the City’s burden. The City must demonstrate that its articulated interest of “protect[ing] pedestrians on medians from encroaching traffic, and drivers from distractions caused by pedestrians on medians,” is concrete and non-speculative. See id. It cannot meet this burden by proffering only evidence that there are panhandlers on medians or that those panhandlers are unpopular without showing that panhandlers in medians create a public safety risk.
[12] The City points to testimony by Chief Citty and Fowler that they have seen car tracks on medians, but these marks do not demonstrate that a pedestrian was present when the marks were created. Further, even evidence of one or a very limited number of such accidents over an extended period of time might not rise to the level of evidence necessary to substantiate the government’s interest in enacting this particular ordinance. Because there is no evidence of any such accident, we need not, and do not, speculate where the threshold of materiality might lie.
[13] As part of its argument, the City occasionally refers to alleged distractions created by pedestrians on medians. But it identifies no evidence in the record supporting the proposition that pedestrians on medians provide such distractions that they affect drivers’ ability to drive safely. Moreover, drivers testified that pedestrians are used to seeing speakers on medians and that pedestrian presence makes them more aware of their driving.
[14] We also note that the passage of the Revised Ordinance was quickly followed by the expansion of the existing Aggressive Panhandling Ordinance, which further restricted these alternative locations.
[15] We note also that the report presenting this data proposes increased pedestrian infrastructure, education campaigns for drivers and pedestrians about the most dangerous times of the year for pedestrians, and “traffic-demand management strategies” to increase safety. It does not propose limiting or banning pedestrian presence in any manner.
[16] We also note that the City employs a chief traffic engineer, who did not participate in or contribute to the development of the Original or Revised Ordinances. He was also not requested to conduct any studies, evaluations, or surveys of the City’s medians to assess their relative safety, or to provide any recommendations regarding safety measures for pedestrians on medians.
[17] We note that the characteristics of medians that plaintiffs argue make them “safe,” see supra, also provide information that would help the City craft an alternative to the Revised Ordinance that on this record would be less burdensome to plaintiffs’ speech. For example, the City could limit the ordinance’s application to medians that are both insufficiently wide and located on streets where the actual speed of passing cars poses a substantial danger to pedestrians. Or it could only apply the Revised Ordinance to the mid-block portions of medians on a given block. The City has more than enough information to craft an ordinance that burdens less speech and is closely aligned with its stated interest of public safety, should it decide to do so.
[18] We are also not convinced by the City’s cursory response that it could not regulate pedestrian activity on roadsides or sidewalks. It already does. See, e.g., §§ 30-428, 30-430 (barring aggressive panhandling within twenty feet of outdoor restaurant seating, within fifty feet of a mass transportation stop, within fifty feet of school property, after dark, or of minors); § 30-81(f) (barring obstruction of pedestrian traffic on sidewalks).
[19] The City cites Williams-Yulee for the proposition that underinclusiveness is
only relevant if a regulation is “riddled with exceptions.” In Williams-Yulee, the
Court concluded that the law “raise[d] no fatal underinclusivity concerns” because it
“aim[ed] squarely at the conduct most likely to” advance its interest; it “appli[ed]
evenhandedly to all;” and “unlike some laws that we have found impermissibly
underinclusive, [the law at issue in that case] is not riddled with exceptions” because
it “contains zero exceptions to its ban on personal solicitation.”
[20] Our conclusion that the City has failed to show that the Revised Ordinance
is narrowly tailored means we are not required to address whether the Revised
Ordinance leaves open ample alternative channels of communication. See, e.g.,
McCullen,
[21] The City pointed to evidence that the number of Curbside vendors has increased and that the Oklahoma Libertarian Party was able to obtain the requisite number of signatures on a ballot initiative petition. But evidence demonstrates that Curbside’s sales have decreased under the Revised Ordinance, which better reflects the inadequacy of the unaffected medians, and that the OLP garnered most of its signatures before the Revised Ordinance took effect.
[22] Our concerns regarding the adequacy of alternatives do not extend to Wilson, Schindler, and Red Dirt Report. Wilson provides no evidence to support a conclusion that she cannot stop to talk with her jogging companions on sidewalks or roadsides, rather than medians. Schindler likewise provides no evidence that aside from his preference to run on grass along the marathon route—which does not pertain to the effectiveness of his expression—his expressive activity cannot be equally accomplished on sidewalks or roadsides. Finally, Red Dirt Report does not provide enough evidence to demonstrate that sidewalks and roadsides across the street from the event are not adequate alternatives for it to report the news. Although medians present benefits by being “a little raised above the road” and out of the way of the first responders, we do not see sufficient evidence in the record to show that a nearby sidewalk or roadside across the street would not be an adequate alternative.
[23] We acknowledge the parties’ dispute regarding the applicable definition. The Original Ordinance excised most of the existing definition, leaving “emergency” to mean “an unforeseeable occurrence of temporary duration.” Ordinance 25,283. The Revised Ordinance kept that definition. Ordinance 25,777. Later, Ordinance 25,709 repealed and replaced the definition passed in the Original Ordinance. Okla. City, Okla. Ordinance 25,709 (Aug. 30, 2017). Ordinance 25,709’s definition restored much of the original language defining an “emergency” as “an unforeseeable occurrence of temporary duration causing or resulting in an abnormal increase in traffic volume, cessation or stoppage of traffic movement, or creation of conditions hazardous to normal traffic movement, including fire, storm, accident, riot, or spontaneous assembly of large numbers of pedestrians in such a manner as to impede the flow of traffic.” Id. § 32-1(22). But we need not decide what the applicable definition is—under all three definitions, the term is not unconstitutionally vague.