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Federal Judge Overturns Portland Median Strip Ordinance
02/12/2014   Reported By: Tom Porter

A federal judge today overturned an ordinance passed by the city of Portland last summer designed to curb panhandling in traffic medians. City officials said the ordinance was all about public safety and the need to curb unnecessary pedestrian activity in traffic medians and busy intersections. But opponents, including civil libertarians, challenged the ordinance, saying the measure was too sweeping and unconstitutional. Tom Porter has more.

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Portland Median Strip Ordinance Overturned Listen
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A Panhandler Named "Dave"

As well as preventing the city's homeless population from soliciting donations, opponents argue, it also limits free speech by preventing political protestors from standing in medians holding signs. In the end, United States District Court George Singal agreed.

"This is a great victory for the First Amendment. It's also a great victory for anyone who uses public spaces for free expression," says Zach Heiden, the legal director for the American Civil Liberties Union of Maine, which filed the lawsuit on behalf of three individuals - two activists who have a history of standing on median strips holdings political signs and a young woman who uses the strips to request personal financial assistance from passing motorists.

The city introduced the measure, citing an increase in complaints from the public about the distraction caused by such activities. Speaking to the press back in November, Councilor Ed Suslovic said the ordinance was concerned only with protecting human life.

"The majority of the complaints that I got were, 'You people need to do something, someone's going to get killed one of these days,'" Suslovic said then. "And I feel that it's really been luck, frankly, that we've gone this far without having someone killed on a median strip."

Following Wednesday's court decision, city of Portland attorney Danielle West-Chuhta said in a statement that "while we respect the Court's decision we are, of course, very disappointed." City officials, she says, "are still in the process of determining next steps, including whether or not to appeal the decision."

But in his decision, Judge Singal found inconsistencies in the city's restrictions. He notes, for example, that the ordinance does allow people on the medians to plant political campaign signs - a situation he describes as a "content-based restriction on free speech."

The ACLU's Zach Heiden says the safety argument was taken seriously by the court, which in the end decided the ordinance was not necessary to protect the public - there are other ways to do it.

"Other ways that you could protect safety would be to restrict the speed of people when they're traveling near medians, or to impose restrictions on particular medians, or particular times when there are real dangers that have been demonstrated," he says. "But to pass a blanket prohibition on use of all medians at all times for all reasons, was really going too far."

Heiden says ordinances like this have been appearing all over the country in recent years. "Our hope is that this decision really sends a strong message to towns and cities, and says, 'Be very cautious when you're thinking about passing one of these laws. Laws liks this are strongly disfavored.'"

Portland had voluntarily stopped enforcing the ordinance in October, pending the outcome of the court case.

View Judge Singal's decision.

Photo:  Patty Wight

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