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Judge rules median strip ban is unconstitutional

A federal court judge ruled that Portland's ordinance that banned people from loitering in the city's median strips in unconstitutional.2-13-14-median-panhandler
Judge George Singal, of the U.S. District Court of Maine, ruled Wednesday that Portland's median strip ordinance failed to pass constitutional muster and is in violation of the First Amendment. Singal found that the city's argument that it was needed to protect public safety did not trump the fact it prohibited speech in a public area.
"Because the ordinance is not necessary to serve the city's interest in public safety, the court finds that the ordinance fails strict scrutiny," Signal wrote in his decision. "... The court holds that on its face the city's ordinance is a violation of the First Amendment."
The lawsuit — filed on behalf of Michael Cutting, Wells Staley-Mays and Alison Prior — contended the recently implemented ordinance in unconstitutional and argued the new regulation is too broad and restricts the plaintiffs' freedom of speech. The suit was filed on behalf of three Portland residents who used the median strips to voice their constitutionally protected speech, according to the ACLU of Maine. Cutting and Staley-Mays are political activists who used the medians to express their opinions and Prior, who was identified as homeless in the filings, used the traffic islands to solicit donations to buy food.
The city maintained that the ordinance was designed to create a safer environment for its citizens by blocking them from staying in the traffic islands, and people can still express the First Amendment rights on sidewalks or other public spaces.
The judge found that while people were prevented from holding protest signs or panhandling in the medians, the ordinance still allowed them to place and pickup campaign signs from the islands, according to the ruling, and that did not meet the content neutral test for constitutionality. Further, Singal wrote that the city argued the compelling interest to enact the ordinance was public safety, yet still allowing people to enter the medians to place campaign signs defied that contention.
"The ordinance fails to pass constitutional muster because the ordinance is not absolutely necessary to serve the state's asserted interest in public safety," Singal wrote in his decision. "In order to keep the public safe, it is not necessary to allow individuals to transit the city's medians in order to place or remove campaign sings. To the contrary, by allowing individuals to stand on the city's medians for the purpose of place or removing campaign signs, the ordinance actually undermines the city's interest in public safely by placing those individuals at greater risk."
Included in Singal's ruling was an injunction that blocks the city from enforcing the ordinance.
"Today's decision is an important victory for freedom of speech, and for all people who use public spaces to communicate with their fellow citizens," said Zachary Heiden, legal director for the ACLU of Maine, in a statement. "The First Amendment protects all of us, no matter what views we hold or how much money we make."
Portland Corporation Counsel Danielle West-Chutha said, in a statement, "While we respect the court's decision we are of course very disappointed." The city is still reviewing the judge's decision and in the process of figuring out its next steps, which includes whether or not to appeal the ruling, she said.
In compliance with the judge's order the city will not enforce the ordinance.
"Safety has always been our primary concern," Sauschuck said, in a statement. "Although we were hoping for a different outcome we will certainly abide by the Judge's decision."

Staley-Mays, board member of Peace Action Maine, said Wednesday, "I'm happy on behalf of myself and all those people who hold political signs and all those homeless people who have to panhandle in order to eat."
He said the argument of public safety was a flawed argument because no accident has ever happened on any of the medians. The motivation was "classicism," he said.
Middle-class people were made uncomfortable by the sight of "scruffy-looking" panhandlers, he said.
When he first came here 17 years ago he held signs on medians. He said he was surprised that the City Council passed the ordinance unanimously.
"It has nothing to do with personalities. It has everything to do with free speech and giving homeless people a chance to make enough money to eat and pay their rent," he said of the ensuing debate.
The median strip loitering ban was passed in July 2013 and prohibited anyone from standing, sitting, staying, driving or parking on a median except when using them for crossing from one side of the street to the other. Since the ban was enacted, police officers issued five criminal trespass notices to people loitering in the median strips.
In October, the city announced that a ban on loitering in Portland's median strips would be limited to only incidents involving a person who is impaired and posing a threat to traffic, according to a press release, and would use other existing laws to deal with any issues that arise. The scaled-back enforcement was to remain in effect until a ruling was made on the lawsuit.

— David Carkhuff contributed to this report.

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