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Published
Published
No. 13-2389
ROBERT S. REYNOLDS,
Plaintiff - Appellant,
v.
DOUGLAS A. MIDDLETON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:12-cv-00779-JAG)
Argued:
Decided:
Reynolds
donations
brought
an
action
Henrico
County
is
in
homeless
Henrico
raising
ordinance
County roadways.
supports
County,
First
that
and
Virginia.
Amendment
prohibits
himself
by
Reynolds
challenges
solicitation
to
within
to
2012,
prohibited
those
ordinance
defined
Henrico
standing
to
County
in
include
the
had
County
an
ordinance
roadways,
medians,
from
which
that
the
distributing
increased
[i]n
the
past
few
years
and
particularly
the
current year, J.A. 63, and that this increase had led to an
increased
number
of
complaints
2
from
citizens.
Middleton
explained
that
he
believed
soliciting
from
the
median
was
would
make
the
roads
safer.
Middleton
J.A.
64.
Middleton did not consult traffic-safety or other experts
before
seeking
the
changes
to
the
ordinance,
but
based
his
an
observations,
opinion
the
that
credible
he
based
reports
of
on
other
his
personal
law-enforcement
J.A. 60.
in
his
deposition
testimony
or
in
his
been
County
an
increased
highways,
presence
especially
in
[roadway
the
medians
solicitors]
of
in
numerous
intersections in the West End of the County, J.A. 29, and that
[n]umerous complaints have been received from County citizens
3
over
the
report,
past
police
several
months,
received
97
J.A.
calls
30.
for
According
service
to
the
concerning
the
record
J.A. 31.
of
actual
caused
by
panhandling
or
Sec.
22195.
Distributing
handbills,
soliciting
contributions or selling merchandise or services in
highway.
(a) It shall be unlawful for any person while in the
highway to:
(1) Distribute handbills, leaflets, bulletins,
literature, advertisements or similar material to the
drivers of motor vehicles or passengers therein on
highways located within the county.
(2) Solicit contributions of any nature from the
drivers of motor vehicles or passengers therein on
highways located within the county.
(3) Sell or attempt to sell merchandise or
services
to
the
drivers
of
motor
vehicles
or
passengers therein on highways located within in the
county.
(b) For purposes of this section, the term highway
means the entire width of a road or street that is
improved, designed, or ordinarily used for vehicular
travel and the shoulder, the median, and the area
between the travel lane and the back of the curb.
J.A.
16.
Given
the
definition
of
highway,
the
Amended
exchange
for
food,
but
it
permits,
for
example,
campaign
in
the
medians.
Solicitation
and
other
activities
that
streets
and
medians
are
The court
traditional
public
content-neutral
and
narrowly
tailored
time,
place,
and
See Clatterbuck
as
traditional
public
forum[s].
Id.
at
555;
see
Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en
5
thoroughfares
that
constitute
the
traditional
public
fora.).
The governments power to regulate speech in a traditional
public forum is limited, though not foreclosed.
708
F.3d
at
555.
Content-neutral
time,
place,
Clatterbuck,
and
manner
leave
open
ample
alternative
channels
of
communication.
Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert.
denied, 135 S. Ct. 183 (2014).
narrowly
tailored
if
it
A content-neutral regulation is
does
not
burden
substantially
more
Reynolds,
district
now
courts
represented
decision
by
upholding
counsel,
the
challenges
Amended
the
Ordinance.
Reynolds argues that the County bears the burden of proof and
6
suppression
of
speech
under
[W]here a plaintiff
the
First
Amendment,
the
Lim v. City
of Long Beach, 217 F.3d 1050, 1054 n.4 (9th Cir. 2000); see
American Legion Post 7 v. City of Durham, 239 F.3d 601, 606 (4th
Cir.
2001)
First
(threshold
Amendment
scrutiny
burdens speech).
the
burden
determination
is
triggering
whether
application
challenged
of
regulation
then
falls
on
the
government
to
prove
the
government
must
demonstrate
[that
the
speech
restriction
v.
Fane,
507
U.S.
761,
770
(1993)
(It
is
well
speech
carries
the
burden
of
justifying
it.
As
affidavit
for
summary
judgment
purposes,
when
the
is
narrowly
tailored
to
further
significant
The County
experience
of
other
jurisdictions,
when
defending
the
Amended Ordinance.
The
Countys
precedent.
formulation
certainly
finds
support
in
our
365 n.3 (4th Cir. 2012) ([C]onsistent with over thirty years of
case
law
from
defendant]
has
the
Supreme
Court
and
established
that
the
our
court,
Sign
[the
County
Ordinance
passes
justifying
regulation
of
the
type
that
has
been
required
the
government
to
present
evidence
to
show
the
in
Second
Amendment
case
subject
to
intermediate
scrutiny).
As to the other narrow-tailoring requirements, our cases
have
not
been
entirely
clear
about
what
the
government
must
that
challenged
regulation
materially
advances
an
507,
515
(4th
Cir.
2002)
(emphasis
added;
internal
and
that
the
[challenged
regulation]
(emphasis
alteration
added;
citations,
omitted).
While
internal
these
alleviates
cases
seem
to
marks
and
insist
on
than
objective
evidence
when
determining
that
speech
See,
logic
(internal
quotation
marks
omitted));
Educational
Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 589 (4th
Cir. 2010) (relying on history, consensus, and common sense).
In our view, however, the Supreme Courts recent decision
in McCullen v. Coakley clarifies what is necessary to carry the
governments
burden
of
proof
under
intermediate
scrutiny.
within
abortion clinic.
trial
on
statute,
35
the
of
an
entrance
or
driveway
stipulated
and
feet
facts,
First
the
Circuit
11
district
affirmed.
an
After a bench
court
The
of
upheld
Supreme
the
Court
to
whether
governmental
the
interest,
recognizing
the
the
legitimacy
statute
Court
of
furthered
referred
the
to
significant
prior
governments
case
law
interests
in
narrowly
because
it
burdened
substantially
Commonwealths
narrow-tailoring
more
In rejecting
arguments,
the
Court
the
Commonwealths
arguments.
See
id.
at
2539
at
other
clinics,
or
at
other
times
in
Boston,
in
safety
and
congestion
problems
addressed
by
the
statute
at
2540
(Given
the
vital
12
First
Amendment
interests
at
draw
McCullen.
several
lessons
from
the
Courts
decision
in
of
governmental
interest
may
be
established
by
to
show
that
governments interests. 4
Commonwealths
intermediate
speech
furthers
the
narrow-tailoring
scrutiny
restriction
does
arguments
indeed
makes
require
it
the
clear
that
government
to
does
not
burden
substantially
more
speech
than
carry
the
governments
burden.
With
these
principles
in
is
narrowly
tailored
to
serve
significant
governmental interest.
A.
The County contends that the solicitation activities that
the Amended Ordinance prohibits can obstruct traffic and are
dangerous to drivers and solicitors alike, and that the Amended
Ordinance
furthers
the
Countys
the
Countys
substantial.
legitimacy
of
asserted
interests
in
safety
and
interests
are
legitimate
and
governments
interests
in
ensuring
public
We disagree.
14
Under
intermediate
scrutiny,
the
County
is
required
to
future
ones.
Ross,
increasing
number
of
746
F.3d
at
556
(internal
people
soliciting
contributions
from
at
556
(explaining
that
the
government
is
entitled
to
it
is
apparent
that
the
interests
furthered
Amended
as
it
the
obvious
Massachusetts
Ordinance
furthers
the
Ordinance
was
Amended
furthers
that
safety
15
the
the
Countys
statute
interests,
as
in
safety
McCullen
both
move
While the
record in this case does not establish how many people solicit
from the roadways or how many use the roadways for purposes
permitted
by
the
Amended
Ordinance,
it
does
establish
that
law-enforcement
prompt
hundreds
officer
of
with
40
citizen
years
experience
complaints.
and
Under
to
these
removing
solicitors
from
County
roadways,
the
Amended
addition
a
substantially
to
narrowly
more
furthering
tailored
speech
than
regulation
is
(internal
quotation
marks
significant
must
necessary
to
governmental
not
burden
further
the
omitted).
As
noted,
the
16
intersections,
focused.
in
an
where
Chief
Middletons
concerns
were
particularly
busy
intersections,
that
roads
and
intersections,
but
on
all
roadways
and
be
Chicago,
safely
310
F.3d
conducted
1029,
there.
1040
(7th
See
Cir.
Weinberg
2002)
v.
(The
City
of
concerns
in
large
parking
lots,
less
congested
walkways,
or
to
Reynolds,
the
County
17
could
achieve
its
safety
--
jaywalking,
against
any
obstructing
roadway
traffic,
solicitors
loitering,
who
in
and
fact
the
obstruct
therefore
argues
that
the
district
court
erred
in
(explaining
speech
covered
appropriate
by
that
courts
the
balance
must
ordinance
between
the
consider
and
the
whether
affected
amount
there
speech
is
and
of
an
the
constitutional
alteration
contribution,
protection.
omitted)),
whether
as
well
political
or
(internal
as
18
soliciting
charitable,
quotation
or
any
marks
kind
of
selling
or
Indeed,
speech
invites
physical
vehicles.
that
the
necessary
identified
transactional
interaction
speech
between
Ordinance
because
by
the
it
only
County
does
not
pedestrians
the
necessarily
and
motor
eliminates
that
the
more
speech
precise
disruption
problem
caused
Id.
than
by
In the
lights
and
roadside
stop
leafletting
activities
however,
would
the
not
at
The
and
busy
Ordinance
thus
solicitation,
be
established,
solicitation
county.
signs.
dangerous.
at
most,
even
The
a
intersections
prohibits
where
Countys
problem
in
the
those
evidence,
with
west
all
end
roadway
of
the
county-wide
sweep
of
the
Amended
Ordinance
burdens
more
at
other
clinics,
or
at
other
times
in
Boston,
in
For a problem
35foot
buffer
zones
at
every
clinic
across
the
County
also
asserts
that
the
Amended
Ordinance
is
specifically,
ineffective
to
the
prior
control
the
versions
problem.
of
the
As
Ordinance
to
the
were
other
laws
for
the
direct
fit
of
the
[Amended]
Ordinance.
20
are not jaywalking, and yet they may still cause the disruption
identified by the County.
Given the
simply
that
the
(emphasis added).
evidence
showing
chosen
route
is
easier,
id.
at
2540
it
ever
tried
to
use
the
available
any
roadway
solicitors
who
actually
obstructed
Without
such
evidence,
the
County
cannot
carry
its
See
id.
existing
at
laws
2539
(rejecting
would
21
not
States
prevent
argument
the
safety
that
and
to
we
have
establish
concluded
that
the
that
Amended
the
Countys
Ordinance
was
evidence
narrowly
in
McCullen,
which
was
issued
after
the
district
guidance
at
the
they
prepared
their
cross-
opportunity
to
gather
and
present
evidence
sufficient
to
22
and
remand
for
further
factual
development
and
additional