Street Medians Become Free Speech Battleground

Posted October 1, 2013 in Crime Your Personal Rights by

Street median

Denver Metro Living Streets Initiative

The ACLU of Maine is suing the state’s largest city for making it a crime to stand in street medians, arguing that the ban infringes on the right to free speech.

In July, the city council in Portland, Maine voted unanimously to prohibit people from hanging out in medians after Portland Police Chief Michael Sauschuck testified that panhandlers were creating a safety hazard.

Sauschuck told the Maine Sun Journal that “there’s been an absolute explosion” of pedestrians standing in medians to ask for money since July of 2012. He said Portland police routinely receive reports of intoxicated panhandlers who have fallen into traffic or are passed out on narrow medians.

Critics of the law say it’s harmful to the homeless who solicit donations from passing cars and political demonstrators who regularly protest in the often narrow strips of land between lanes. The new ordinance defines “median” as a “paved or planted area of public right-of-way, dividing a street or highway into lanes according to the direction of travel.”

“While this ordinance was framed as an effort to protect public safety, in reality it prohibits a significant amount of peaceful, non-threatening, constitutionally-protected speech,” Zachary Heiden, legal director of the ACLU of Maine, said in a statement.

“The city of Portland should not be in the business of telling people where they can and cannot exercise their constitutional rights, and it should certainly not be banning speech in an area that has traditionally been used as a forum for public dialogue.”

Of the three plaintiffs in the lawsuit, two are political activists and one is a homeless woman who supports herself on donations from drivers.

Under the ordinance, police can issue violators with citations and fines ranging from $100 to $500. Sauschuck has directed his officers to give warnings where appropriate, but Portland police can now order any pedestrian to leave a median.


Safety First

New York attorney Robert S. Herbst told that public safety trumps the median’s traditional use as a public forum.

“That standing on medians to protest and panhandle has gone on for a long time would be relevant only if circumstances have not changed,” Herbst said. “If there are now more people or they are closer to traffic or there is more traffic, then there would be a rational basis and public safety reason for limiting the standing on the medians.”

“Free speech can be abused and then it becomes limited, like yelling ‘fire’ in a crowded theater or bullying.”  


Laws Challenged Elsewhere

The Portland law bans all pedestrians from loitering on medians regardless of whether or how they exercise free speech, so it won’t necessarily meet the same fate as Michigan’s anti-begging law, which was recently struck down as unconstitutional.

The 1929 Michigan law declared anyone “begging in a public place” to be “disorderly” and at risk of being imprisoned for 90 days and fined up to $500. The ACLU of Michigan sued to block the law in 2011, representing two Grand Rapids men who were repeatedly arrested under the statute. In August of 2013, a federal appeals court ruled that solicitation is protected under the First Amendment.

The constitutionality of public panhandling is also the focus of an ACLU lawsuit in Massachusetts, where the city of Worcester passed two new restrictions earlier this year. One law bans standing on traffic islands, similarly to Portland’s ordinance. The other law places a variety of restrictions on public begging, such as prohibiting begging a half hour before sunset or within 20 feet of an entrance to a bus stop, theater entrance, ATM or “other place of public assembly.”

Do you agree that asking for money is constitutionally protected speech? Do you think street medians are too dangerous for panhandling or protesting? Share your thoughts in the comments section below.

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