Last week, the federal Court of Appeals for the Tenth Circuit ruled that an Oklahoma City law prohibiting people from remaining on street medians violated the First Amendment.  The law was challenged by a diverse group, including panhandlers, minority political parties, and even joggers.

In 2015, apparently in response to concerns regarding panhandling, Oklahoma City passed a law that prohibited individuals from sitting, standing, or remaining in street medians throughout the city.  Although the law was motivated by concerns regarding panhandlers, the city sought to justify the law with the presentation of safety statistics regarding pedestrians in street medians.  A group of plaintiffs sued the city, and it revised the ordinance in 2017 to limit the law’s coverage to medians along streets with speed limits of 40 miles per hour or greater.  Again, the city justified its amended law with safety information.

The district court dismissed the claims of one of the plaintiffs, a jogger whom the court determined did not have standing to raise First Amendment claims due to the non-expressive nature of jogging.  Following a trial, the court then entered judgment in favor of the city, determining that, although the street medians were public fora, the restriction in question was a time, place, and manner restriction that was narrowly tailored to the public safety purposes in question.

On appeal, the Tenth Circuit reversed.  The appellate court first found that the jogger whose claim was dismissed had standing under the First Amendment, as she had alleged that she used street medians to engage in casual conversation while on runs in the city.  In line with decisions from other circuits, the court agreed that street medians were public fora.  But the appeals court disagreed that the restriction in question was narrowly tailored.  Citing trial testimony from city witnesses, the Tenth Circuit noted that no pedestrians in Oklahoma City had been injured on street medians, and the court further noted that the city had compiled little evidence to counter testimony from the plaintiffs that they felt safe in street medians.  Because the city had failed to identify a concrete harm from the presence of individuals in street medians, the court concluded that the city lacked a substantial governmental interest.  And because the city did not established a clear safety problem resulting from pedestrians in street medians, the court further determined that the city had less restrictive means available to accomplish its safety goals.

Since content based prohibitions on panhandling have been found universally unconstitutional in the wake of Reed, many cities have attempted to use median restrictions like Oklahoma City’s to address panhandling.  Unfortunately, many of these restrictions have met the same end as Oklahoma City’s, albeit for different reasons.  The Tenth Circuit’s decision in this case is instructive for local governments that have used broad median restrictions to address panhandling, and sends a warning signal suggesting that these regulatory efforts are constitutionally questionable if unsupported by concrete safety data.

McCraw v. City of Oklahoma City, ___ F.3d ___, 2020 WL 5103634 (10th Cir. Aug. 31, 2020).