Robert Reynolds v. Douglas Middleton

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-00779-JAG. [999533954]. [13-2389]

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 1 of 23

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

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:

October 28, 2014

Decided:

February 24, 2015

Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Diaz and Senior Judge Davis
joined.

ARGUED: Brian Timothy Burgess, GOODWIN PROCTER LLP, Washington,
D.C., for Appellant. Andrew Ramsey Newby, OFFICE OF THE COUNTY
ATTORNEY, Henrico, Virginia, for Appellee. ON BRIEF: William M.
Jay, Washington, D.C., Kevin P. Martin, GOODWIN PROCTER LLP,
Boston, Massachusetts, for Appellant. Joseph P. Rapisarda, Jr.,
Lee Ann Anderson, COUNTY OF HENRICO, Henrico, Virginia, for
Appellee.

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 2 of 23

TRAXLER, Chief Judge:
Robert
soliciting

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

a

within

The district court granted summary judgment in

favor of the County, and Reynolds appeals.

For the reasons that

follow, we vacate the grant of summary judgment and remand for
further proceedings.
I.
Prior

to

2012,

prohibited

those

ordinance

defined

Henrico

“standing”
to

County
in

include

the

had

County

an

ordinance

roadways,

medians,

from

which

that
the

distributing

handbills, soliciting contributions, or selling merchandise to
car drivers or passengers.

Roadway solicitors got around the

ordinance by soliciting funds while sitting in the medians.
Police Chief Douglas Middleton, the named defendant, urged
the Henrico County Board of Supervisors to consider amending the
ordinance to prohibit all roadway solicitation while standing or
sitting.

At a public hearing on the issue, Middleton stated

that the number of people soliciting while sitting in medians
had

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

Appeal: 13-2389

Doc: 35

explained

Filed: 02/24/2015

that

he

believed

Pg: 3 of 23

soliciting

from

the

median

was

dangerous to the solicitors and to drivers and that prohibiting
median-solicitation

would

make

the

roads

safer.

Middleton

stated that “as chief of police I cannot ignore the increasingly
present danger that the current activities are creating, [and] I
would rather proceed to avoid a tragedy, and I am responding to
that in a proactive manner as opposed to being reactive.”

J.A.

64.
Middleton did not consult traffic-safety or other experts
before

seeking

the

changes

to

the

ordinance,

but

based

his

proposal on his opinion that it is unsafe to solicit “in the
highway,”

an

observations,

opinion
the

that

credible

he

based

reports

of

on
other

his

“personal

law-enforcement

officers and citizens, and [his] experience as a law-enforcement
officer for over 40 years.”

J.A. 60.

Middleton did not give

any specific examples of accidents or other problems caused by
median-solicitors

in

his

deposition

testimony

or

in

his

statements at the public hearing.
The County Attorney’s Office prepared a report addressing
solicitation on County highways.
had

been

County

an

“increased

highways,

presence

especially

in

The report stated that there
of

[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

Appeal: 13-2389

over

Doc: 35

the

report,

past
police

Filed: 02/24/2015

several

Pg: 4 of 23

months,”

received

“97

J.A.

calls

30.
for

According
service

to

the

concerning

panhandling” in 2011 and received 93 such calls in the first 8
months of 2012.
in

the

record

J.A. 31.
of

actual

There is no other empirical evidence
problems

caused

by

panhandling

or

soliciting from medians.
The Board of Supervisors agreed with Middleton and voted to
amend the ordinance.

The amended version of the ordinance (the

“Amended Ordinance”) provides as follows:

Sec.
22–195.
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.

4

Appeal: 13-2389

J.A.

Doc: 35

16.

Filed: 02/24/2015

Given

the

Pg: 5 of 23

definition

of

“highway,”

the

Amended

Ordinance prohibits a homeless person from sitting (or standing)
in a median with a sign asking for donations or offering to work
in

exchange

for

food,

but

it

permits,

for

example,

campaign

workers with signs urging drivers to vote for their candidate to
gather

in

the

medians.

Solicitation

and

other

activities

prohibited on the highways and medians remain permissible on
County sidewalks, which are not included in the definition of
“highway.”
Acting pro se, Reynolds brought this action challenging the
Amended Ordinance on First Amendment grounds.
County cross-moved for summary judgment.

Reynolds and the

The district court

denied Reynolds’ motion and granted the County’s.
recognized

that

streets

and

medians

are

The court

traditional

public

forums, but the court nonetheless upheld the Amended Ordinance
as

a

content-neutral

and

narrowly

manner restriction on speech.

tailored

time,

place,

and

This appeal followed.
II.

There is no question that panhandling and solicitation of
charitable contributions are protected speech.

See Clatterbuck

v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013).
There is likewise no question that public streets and medians
qualify

as

“traditional

public

forum[s].”

Id.

at

555;

see

Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en
5

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 6 of 23

banc) (“Median strips, like sidewalks, are integral parts of the
public

thoroughfares

that

constitute

the

traditional

public

fora.”).
The government’s 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

regulations of speech in traditional public forums are subject
to intermediate scrutiny – that is, the restrictions must be
“narrowly tailored to serve a significant government interest
and

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

speech than is necessary to further the government’s legitimate
interests.”

McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)

(internal quotation marks omitted).

To be valid, the regulation

“need not be the least restrictive or least intrusive means of
serving the government’s interests.

But the government still

may not regulate expression in such a manner that a substantial
portion of the burden on speech does not serve to advance its
goals.”

Id. (internal quotation marks omitted).

Reynolds,
district

now

court’s

represented
decision

by

upholding

counsel,
the

challenges

Amended

the

Ordinance.

Reynolds argues that the County bears the burden of proof and
6

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 7 of 23

that the County’s evidence was insufficient to establish that
the Amended Ordinance is narrowly tailored or that it leaves
open ample alternative channels of communication. 1
III.
We begin with the burden of proof.
claims

suppression

of

speech

under

“[W]here a plaintiff

the

First

Amendment,

the

plaintiff bears the initial burden of proving that speech was
restricted by the governmental action in question.”

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

After the plaintiff makes his initial showing,

then

falls

on

the

government

constitutionality of the speech restriction.

to

prove

the

See McCullen, 134

S. Ct. at 2540 (“To meet the requirement of narrow tailoring,
the

government

must

demonstrate

1

[that

the

speech

restriction

Reynolds expressly does not challenge the district court’s
determination that the Amended Ordinance is content- neutral,
and we therefore do not consider that issue.
We note that the
Supreme Court recently heard argument in a case involving the
content-neutrality of a town ordinance regulating temporary
signs.
See Reed v. Town of Gilbert, S. Ct. Docket No. 13-502
(argued Jan. 12, 2015).
In the event the Supreme Court’s
decision in Reed undermines the district court’s analysis of the
neutrality issue, the district court on remand will be free to
reconsider the issue.
See, e.g., TFWS, Inc. v. Franchot, 572
F.3d 186, 191 (4th Cir. 2009) (noting exception to the law-ofthe-case doctrine for change in controlling legal authority).
7

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 8 of 23

meets the relevant requirements].” (emphasis added)); see also
Edenfield

v.

Fane,

507

U.S.

761,

770

(1993)

(“It

is

well

established that the party seeking to uphold a restriction on
commercial

speech

carries

the

burden

of

justifying

it.”

(internal quotation marks and alteration omitted)).
Here, Reynolds made the necessary threshold showing.

As

discussed, solicitation of charitable contributions is speech,
and Reynolds alleged in his verified complaint that the Amended
Ordinance inhibits his ability to collect donations by requiring
him to move to locations where it is more difficult for drivers
to make contributions. 2

See Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991) (verified complaint “is the equivalent of an
opposing

affidavit

for

summary

judgment

purposes,

when

the

allegations contained therein are based on personal knowledge”).
The County was therefore obligated to prove that the Amended
Ordinance

is

narrowly

tailored

to

further

a

significant

government interest and that it leaves open ample alternative
channels of communication.
The more difficult issue -- and the issue on which this
appeal turns -- is determining precisely what the County must
present in order to carry its burden of proof.
2

The County

As Reynolds explained in his complaint, “forcing him out
of the roadway results in the drivers[’] inability to hand him
money because they cannot reach across the passenger seat and
usually several more feet into Reynolds’ hand.” J.A. 9.
8

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 9 of 23

contends that intermediate scrutiny “does not always require an
evidentiary showing,” Brief of Respondent at 20, and that it is
entitled to rely on common sense and logic, as well case law and
the

experience

of

other

jurisdictions,

when

defending

the

Amended Ordinance.
The

County’s

precedent.

formulation

certainly

finds

support

in

our

We have not required an evidentiary record to uphold

a speech regulation that is materially indistinguishable from
one that has been found constitutional by this court or the
Supreme Court.

See Wag More Dogs, LLC v. Cozart, 680 F.3d 359,

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

constitutional muster under the rubric of intermediate scrutiny.
It need not reinvent the wheel by coming forward with voluminous
evidence

justifying

a

regulation

upheld several times over.”). 3

of

the

type

that

has

been

Likewise, we generally have not

3

Unlike the sign and billboard regulation in Wag More Dogs,
however, the Amended Ordinance is not one of a type that has
consistently been found constitutional. Courts have struck down
some solicitation bans and upheld others, with the outcome
turning on the details and wording of the various regulations
(such as whether the ban applied to medians) as well as the
evidentiary record developed by the parties. See, e.g., Comite
de Jornaleros de Redondo Beach v. City of Redondo Beach, 657
F.3d 936, 949 (9th Cir. 2011) (en banc) (striking down ordinance
banning solicitation of employment or contributions from all
city streets and medians in part because the City introduced
(Continued)
9

Appeal: 13-2389

Doc: 35

required

Filed: 02/24/2015

the

government

to

Pg: 10 of 23

present

evidence

to

show

the

existence of a significant governmental interest; common sense
and the holdings of prior cases have been found sufficient to
establish, for example, that the government has a significant
interest in public safety.

See Ross, 746 F.3d at 555; American

Legion Post 7, 239 F.3d at 609; cf. United States v. Chapman,
666 F.3d 220, 226-27 (4th Cir. 2012) (recognizing that “common
sense and case law” can establish the existence of governmental
interest

in

Second

Amendment

case

subject

to

intermediate

scrutiny).
As to the other narrow-tailoring requirements, our cases
have

not

been

entirely

clear

about

present in order to carry its burden.

what

the

government

must

For example, we have held

that intermediate scrutiny “requires the government to produce
evidence

that

a

challenged

regulation

materially

advances

an

important or substantial interest by redressing past harms or
preventing future ones.”
F.3d

507,

515

(4th

Giovani Carandola, Ltd. v. Bason, 303

Cir.

2002)

(emphasis

added;

internal

evidence of traffic problems as to a few major streets and
medians but “offered no evidence to justify extending its
solicitation ban throughout the City in such a sweeping
manner”); Int’l Soc. for Krishna Consciousness of New Orleans,
Inc. v. City of Baton Rouge, 876 F.2d 494, 498 (5th Cir. 1989)
(discussing evidence presented at trial when upholding ordinance
prohibiting solicitation of employment, business or charitable
contributions from occupants of vehicles on street (defined to
include medians)).
10

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

quotation marks omitted).

Pg: 11 of 23

We have explained that although the

government need not “present a panoply of empirical evidence in
order to satisfy this standard, it must nonetheless make some
evidentiary showing that the recited harms are real, not merely
conjectural,

and

that

the

[challenged

regulation]

these harms in a direct and material way.”
556

(emphasis

alteration

added;

citations,

omitted).

While

internal

these

alleviates

Ross, 746 F.3d at
quotation

cases

seem

to

marks

and

insist

on

evidence, we have in some cases nonetheless relied on things
other

than

objective

evidence

when

determining

that

speech

restrictions advanced the government’s asserted interest.

See,

e.g., Ross, 746 F.3d at 556 (relying on “appeals to common sense
and

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 Court’s recent decision
in McCullen v. Coakley clarifies what is necessary to carry the
government’s

burden

of

proof

under

intermediate

scrutiny.

McCullen involved a First Amendment challenge to a Massachusetts
buffer-zone statute that prohibited standing on a “public way or
sidewalk

within

abortion clinic.
trial

on

statute,

35

the

of

an

entrance

or

driveway”

McCullen, 134 S. Ct. at 2525.

stipulated
and

feet

facts,

First

the

Circuit
11

district

affirmed.

an

After a bench

court
The

of

upheld

Supreme

the
Court

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 12 of 23

applied intermediate scrutiny – the same standard we apply in
this case – and reversed.
As

to

whether

governmental

the

interest,

recognizing

the

the

legitimacy

statute
Court
of

furthered

referred

the

to

a

significant

prior

government’s

case

law

interests

in

public safety and the unobstructed use of roadways and sidewalks
and then stated, without reference to any evidence presented at
trial, that “[t]he buffer zones clearly serve these interests.”
Id. at 2535.
not

narrowly

The Court nonetheless held that the statute was
tailored

because

it

burdened

substantially

speech than necessary to serve those interests.
the

Commonwealth’s

narrow-tailoring

more

In rejecting

arguments,

the

Court

repeatedly grounded its conclusions on the absence of evidence
supporting

the

Commonwealth’s

arguments.

See

id.

at

2539

(“Respondents point us to no evidence that individuals regularly
gather

at

other

clinics,

or

at

other

times

in

Boston,

in

sufficiently large groups to obstruct access.”); id. (rejecting
State’s argument that enforcing existing laws would not prevent
the

safety

and

congestion

problems

addressed

by

the

statute

because the Commonwealth did not identify “a single prosecution
brought under those laws within at least the last 17 years” and
therefore “has not shown that it seriously undertook to address
the problem with less intrusive tools readily available to it”);
id.

at

2540

(“Given

the

vital
12

First

Amendment

interests

at

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 13 of 23

stake, it is not enough for Massachusetts simply to say that
other approaches have not worked.”).
We

draw

McCullen.

several

lessons

from

the

Court’s

decision

in

First, the Court’s discussion of whether the statute

furthered an important governmental interest confirms that the
existence

of

a

governmental

reference to case law.

interest

may

be

See id. at 2535.

established

by

Second, the Court’s

flat declaration that “[t]he buffer zones clearly serve these
interests,” id., indicates that objective evidence is not always
required

to

show

that

government’s interests. 4
Commonwealth’s
intermediate

a

speech

furthers

the

Finally, the Court’s rejection of the

narrow-tailoring

scrutiny

restriction

does

arguments

indeed

makes

require

it

the

clear

that

government

to

present actual evidence supporting its assertion that a speech
restriction

does

not

burden

substantially

more

speech

than

necessary; argument unsupported by the evidence will not suffice
to

carry

the

government’s

burden.

4

With

these

principles

in

In McCullen, the relationship between the government’s
asserted interest and the challenged statute was obvious -- the
Commonwealth was concerned about congestion around abortion
clinics obstructing traffic and preventing access to the
clinics, and the statute prohibited people from gathering in
roadways
around
abortion
clinics.
In
cases
where
the
relationship is not so obvious, we do not believe that McCullen
would relieve the government of its obligation to present
evidence showing that the speech regulation furthers its
asserted interests.
13

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 14 of 23

mind, we turn now to Reynolds’ substantive challenges to the
Amended Ordinance.
IV.
Reynolds argues the County failed to prove that the Amended
Ordinance

is

narrowly

tailored

to

serve

a

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

County’s

unobstructed use of its highways.
that

the

County’s

substantial.
legitimacy

of

asserted

interests

in

safety

and

Reynolds does not dispute

interests

are

legitimate

and

See McCullen, 134 S. Ct. at 2535 (recognizing “the
the

government’s

interests

in

ensuring

public

safety and order [and] promoting the free flow of traffic on
streets” (internal quotation marks omitted)); Brown v. Town of
Cary, 706 F.3d 294, 305 (4th Cir. 2013) (“It is beyond dispute
that the Town’s stated interests in promoting aesthetics and
traffic safety are substantial.”).

Instead, Reynolds contends

that the County’s evidence was insufficient to establish that
the roadway-solicitation prohibited by the Amended Ordinance is
dangerous or that the Amended Ordinance actually furthers the
County’s asserted interests.

We disagree.
14

Appeal: 13-2389

Doc: 35

Under

Filed: 02/24/2015

intermediate

Pg: 15 of 23

scrutiny,

the

County

is

required

to

demonstrate that the Amended Ordinance “materially advances an
important or substantial interest by redressing past harms or
preventing

future

ones.”

quotation marks omitted).

Ross,

increasing

number

of

746

F.3d

at

556

(internal

Chief Middleton testified about the

people

soliciting

contributions

from

intersections, “many” of which are very busy, J.A. 102, and he
described potential dangers associated with that activity, see
J.A. 105 (noting that roadway solicitors might “misjudge the
traffic and step out in front of a car” and that an inattentive
driver might “run up onto the curb”).

Even without evidence of

injuries or accidents involving roadway solicitors, we believe
the County’s evidence, particularly when it is considered along
with a healthy dose of common sense, is sufficient to establish
that roadway solicitation is generally dangerous.
F.3d

at

556

(explaining

that

the

government

See Ross, 746

“is

entitled

to

advance its interests by arguments based on appeals to common
sense and logic” (internal quotation marks omitted)).
And once we accept that roadway solicitation is dangerous,
then

it

is

apparent

that

County’s safety interests.
that

the

interests
furthered

Amended
as

it

the

obvious

Massachusetts’

Ordinance

furthers

the

Indeed, we believe it is as obvious

Ordinance
was

Amended

furthers
that

safety
15

the

the

County’s

statute

interests,

as

in

safety
McCullen

both

move

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 16 of 23

pedestrians out of roadways and away from traffic.

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

roadway solicitors had increased to a number sufficient to worry
a

law-enforcement

prompt

hundreds

officer
of

with

40

citizen

years’

experience

complaints.

and

Under

to

these

circumstances, common sense and logic compel the conclusion that
by

removing

solicitors

from

County

roadways,

the

Amended

Ordinance reduces the number of people engaging in a dangerous
activity and thus furthers the County’s safety interest in a
direct and material way.
B.
In
interest,

addition
a

substantially

to

narrowly
more

furthering
tailored

speech

than

a

regulation
is

government’s legitimate interests.”
2535

(internal

quotation

marks

significant
“must

necessary

to

governmental
not

burden

further

the

McCullen, 134 S. Ct. at

omitted).

As

noted,

the

regulation need not be the least restrictive means available,
“[b]ut the government still may not regulate expression in such
a manner that a substantial portion of the burden on speech does
not serve to advance its goals.”
omitted).

16

Id. (internal quotation marks

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 17 of 23

Reynolds contends that if the County has established any
safety interest at all, that interest is limited to particularly
busy

intersections,

focused.
in

an

where

Chief

Middleton’s

concerns

were

See J.A. 101 (“I think any time you have individuals
intersection,

particularly

busy

intersections,

that

there’s a public safety concern.”); J.A. 102 (“[W]ith traffic as
busy as it is in many of these intersections, and the volume
that was there, I was as concerned for the individuals that were
soliciting as I was for the drivers.”).

Reynolds thus argues

that the Amended Ordinance burdens more speech than necessary
because it bans solicitation not just on the busiest or most
dangerous

roads

and

intersections,

but

on

all

roadways

and

medians in the County, without regard to whether solicitation
could

be

Chicago,

safely
310

F.3d

conducted
1029,

there.

1040

(7th

See
Cir.

Weinberg
2002)

v.

(“The

City

of

concerns

behind . . . the ordinance were to alleviate sidewalk congestion
[around the United Center]. . . . [W]e cannot see how this can
justify a restriction which prevents a peddler from selling his
wares

in

large

parking

lots,

less

congested

walkways,

or

sidewalks in less proximity to the United Center.”).
Reynolds also contends that the Amended Ordinance burdens
more speech than necessary because the County has other, less
restrictive means available to further its asserted interest.
According

to

Reynolds,

the

County
17

could

achieve

its

safety

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 18 of 23

interest by enforcing existing traffic laws -- such as those
governing
like

--

jaywalking,
against

any

obstructing
roadway

traffic,

solicitors

traffic or otherwise cause problems.

loitering,

who

in

and

fact

the

obstruct

The County presented no

evidence demonstrating why these alternatives would not serve
its safety interest as effectively as the Amended Ordinance, and
Reynolds

therefore

argues

that

the

district

court

erred

in

finding the Amended Ordinance narrowly tailored.
Preliminarily, we note that the Amended Ordinance burdens a
wide range of protected speech.

See Watchtower Bible & Tract

Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 165
(2002)

(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

governmental interests that the ordinance purports to serve”).
The Amended Ordinance prohibits all forms of leafletting, which
is one of the most important forms of political speech, see
McCullen, 134 S. Ct. at 2536 (“[H]anding out leaflets in the
advocacy of a politically controversial viewpoint is the essence
of First Amendment expression; no form of speech is entitled to
greater
and

constitutional

alteration

contribution,

protection.”

omitted)),
whether

as

well

political

or

(internal
as

18

soliciting

charitable,

attempting to sell goods or services.

quotation

or

any

marks

kind

of

selling

or

All of this speech is

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 19 of 23

constitutionally protected, and it is all prohibited.

Indeed,

the only thing the Amended Ordinance prohibits is speech; no
portion of it is addressed to pure conduct, such as blocking
traffic.
Despite the broad swath of speech prohibited by the Amended
Ordinance, the County insists the Amended Ordinance is narrowly
tailored because it prohibits only the most dangerous kind of
roadway

speech

invites

physical

vehicles.”
that

the

necessary
identified

–

“transactional”
interaction

speech

between

Brief of Respondent at 34.
Amended

Ordinance

“because
by

the

it

only

County

does

not

pedestrians

the

“necessarily
and

motor

The County thus asserts
burden

eliminates
–

that

the

more

speech

precise

disruption

transactional speech in the middle of the highway.”

problem

caused
Id.

than

by

In the

County’s view, the dangers of roadway solicitation are the same
on busy roads and quiet back roads.

Because the danger is

present on all roads, the County contends that it is appropriate
for the Amended Ordinance to apply to all county roads.
While the County’s arguments are not without some appeal,
they are essentially the same arguments made in McCullen, and
they fail here for the same reason they failed in McCullen –
lack of evidentiary support.

The Amended Ordinance applies to

all County roads, regardless of location or traffic volume, and
includes all medians, even wide medians and those beside traffic
19

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

and

signs.

lights
roadside

stop

leafletting

activities
however,

would

county.
the

at

busy

Ordinance

thus

solicitation,

be

established,

solicitation

The

and

not

Pg: 20 of 23

dangerous.

at

most,

even

The
a

intersections

prohibits
where

County’s

problem

in

the

those

evidence,

with

west

all

end

roadway
of

the

Given the absence of evidence of a county-wide problem,

county-wide

sweep

of

the

Amended

Ordinance

burdens

more

speech than necessary, just as the statute in McCullen -- a
statewide statute aimed at a problem in one location -- burdened
more speech than necessary.

See McCullen, 134 S. Ct. at 2539

(“Respondents point us to no evidence that individuals regularly
gather

at

other

clinics,

or

at

other

times

in

sufficiently large groups to obstruct access.

Boston,

in

For a problem

shown to arise only once a week in one city at one clinic,
creating

35–foot

buffer

zones

at

every

clinic

across

the

Commonwealth is hardly a narrowly tailored solution.”).
The

County

also

asserts

that

the

Amended

Ordinance

is

narrowly tailored because other, less speech-restrictive methods
–

specifically,

ineffective

to

the

prior

control

the

versions
problem.

of

the
As

Ordinance

to

the

–

were

other

laws

identified by Reynolds, the County argues those laws “are no
substitute

for

the

direct

fit

of

the

[Amended]

Ordinance.

Solicitors are not loitering, and those camped out in medians

20

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 21 of 23

are not jaywalking, and yet they may still cause the disruption
identified by the County.”

Brief of Respondent at 42.

As the Court explained in McCullen, however, the burden of
proving narrow tailoring requires the County to prove that it
actually tried other methods to address the problem.

“Given the

vital First Amendment interests at stake, it is not enough for
[the government] simply to say that other approaches have not
worked.”

McCullen, 134 S. Ct. at 2540.

Instead, the government

must “show[] that it seriously undertook to address the problem
with less intrusive tools readily available to it,” id. at 2539
(emphasis added), and must “demonstrate that [such] alternative
measures . . . would fail to achieve the government’s interests,
not

simply

that

the

(emphasis added).
evidence

showing

chosen

route

is

easier,”

id.

at

2540

In this case, the County simply presented no
that

it

ever

tried

to

use

alternatives to address its safety concerns.

the

available

That is, there is

no evidence that the County ever tried to improve safety by
prosecuting

any

roadway

solicitors

who

actually

obstructed

traffic, or that it ever even considered prohibiting roadway
solicitation only at those locations where it could not be done
safely.

Without

such

evidence,

the

County

cannot

carry

its

burden of demonstrating that the Amended Ordinance is narrowly
tailored.
enforcing

See

id.

existing

at
laws

2539

(rejecting

would
21

not

State’s

prevent

argument

the

safety

that
and

Appeal: 13-2389

Doc: 35

Filed: 02/24/2015

Pg: 22 of 23

congestion problems addressed by the buffer-zone law because the
State did not identify “a single prosecution brought under those
laws within at least the last 17 years”).

The district court

therefore erred by finding County’s evidence sufficient to show
narrow tailoring.
V.
Although
failed

to

we

have

establish

concluded

that

the

that

Amended

the

County’s

Ordinance

was

evidence
narrowly

tailored, we believe the proper course is to vacate and remand.
Our analysis in this case was driven by the Supreme Court’s
decision

in

McCullen,

which

was

court’s ruling in this case.

issued

after

the

district

As we have explained, McCullen

clarified the law governing the evidentiary showing required of
a governmental entity seeking to uphold a speech restriction
under intermediate scrutiny.
McCullen’s

guidance

at

the

Because the parties did not have
time

they

prepared

their

cross-

motions for summary judgment, we believe the County should have
an

opportunity

to

gather

and

satisfy McCullen’s standard.

present

evidence

sufficient

to

Accordingly, we hereby vacate the

district court’s order granting summary judgment to the County

22

Appeal: 13-2389

and

Doc: 35

remand

for

Filed: 02/24/2015

further

factual

Pg: 23 of 23

development

and

additional

proceedings as may be required. 5
VACATED AND REMANDED

5

Because the evidence does not establish that the Amended
Ordinance is narrowly tailored, we are not required to consider
whether the Ordinance leaves open ample alternate channels of
communication.
See McCullen v. Coakley, 134 S. Ct. 2518, 2540
n.9 (2014). Nonetheless, because the issue will likely arise on
remand, we briefly address it.
The “available alternatives need not be the speaker’s first
or best choice or provide the same audience or impact for the
speech.”
Ross v. Early, 746 F.3d 546, 559 (4th Cir.), cert.
denied, 135 S. Ct. 183 (2014).
Nonetheless, the alternatives
must be adequate.
See Members of City Council of L.A. v.
Taxpayers for Vincent, 466 U.S. 789, 812 (1984) (“While 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.” (citation
omitted)). The district court noted that the Amended Ordinance
permits leafletting and solicitation on sidewalks and along the
side of the street and concluded that these alternatives were
sufficient as a matter of law.
As indicated in his verified
complaint, however, Reynolds’ target audience is drivers, and
medians offer the most effective way to reach drivers.
As
Reynolds explains, “medians – which are isolated from other
pedestrians, parked cars, and other obstacles that limit
visibility, and which can be seen by vehicles in two-way traffic
– offer unique benefits to speakers seeking to disseminate their
views.”
Brief of Appellant at 50.
While there is no question
that alternative channels of communication exist, Reynolds’
evidence raises a question of fact about the adequacy of those
alternatives.
See Weinberg v. City of Chicago, 310 F.3d 1029,
1041 (7th Cir. 2002) (“[T]he simple fact that Weinberg is
permitted to communicate his message elsewhere does not end our
analysis if the intended message is rendered useless or is
seriously burdened.”).
Because there are genuine questions of
material fact, summary judgment was inappropriate.
23