Government Entities, Case Law Update, October 2020

McCraw v. City of Oklahoma City

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This case addressed whether a revised city ordinance restricting pedestrian activity on street medians was constitutionally infirm under the First Amendment of the United States Constitution. Safety was cited as the reason for the ordinance – to “protect pedestrians on medians from encroaching traffic, and drivers from distractions caused by pedestrians on medians” – yet there was no evidence of pedestrian-related accidents on medians. The claimants included a political candidate campaigning and protesting on the medians, a political party that used the medians to obtain signatures for petitions and to spread its philosophies, a daily periodical that used the medians to cover breaking news, panhandlers, a newspaper distributor, and runners who accessed the medians while running.

The Tenth Circuit characterized all of these activities as constitutionally expressive activity and protected speech. It also categorized the medians as public fora because “medians share fundamental characteristics with public streets, sidewalks, and parks,” despite the “proximity, speed, and volume of passing cars . . . .” It reasoned that the medians had a “‘long tradition’ of expressive activity” including “firefighter charity drives to protests to political campaign signs.”

The court next went on to analyze the ordinance’s validity under the time, place, and manner framework, i.e., whether they were content neutral, narrowly tailored to serve a significant government interest, and provided for alternative means of expression applying an intermediate scrutiny standard. It concluded, “this record is devoid of evidence that accidents involving vehicles and pedestrians on medians . . . is an actual issue, as opposed to a hypothetical concern.” Therefore, the City failed to meet its burden of showing its interest was based on concrete, non-speculative harm.

The court concluded the ordinance was not narrowly tailored because it entirely prohibited the claimants’ presence on more than four hundred affected medians without any other options. Moreover, the alleged substantial government – car and pedestrian safety – did not establish a relationship between auto-pedestrian accidents.

The court also found the City failed to establish the asserted government interest could not be effectively achieved through less burdensome means. In fact, the court noted the City did not contemplate any alternatives, including those advanced by the claimants. “[T]here is no evidence that the City has tried, or even considered, any less-burdensome alternatives. Instead, the City relies on unsupported statements that hypothetically these alternatives could not possibly work.”

The court found only a “loose fit” between the City’s alleged safety interest and its means of promoting that interest. An exception permitted a non-profit organization to landscape the medians, permitting them to be in the medians and, in return for their services, install signs on the medians publicizing the entity’s sponsorship. “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.”

Finally, the court found there were no adequate alternative channels by which the claimants could exercise their speech. “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 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 . . . .”

Based on the above, the Tenth Circuit held that the revised ordinance was not a constitutionally permissible time, place, and manner restriction and, therefore, violated the First Amendment.

Heather S. White