Robert Reynolds v. Douglas Middleton
2015 U.S. App. LEXIS 2704, 779 F.3d 222 (2015)
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Rule of Law:
Under intermediate scrutiny, a government defending a content-neutral speech restriction must present actual evidence that the regulation is narrowly tailored, does not burden substantially more speech than necessary, and that less restrictive alternatives would be ineffective to achieve the government's interest.
Facts:
- Robert Reynolds, a homeless man, supported himself by soliciting donations from occupants of vehicles while sitting on medians in Henrico County, Virginia.
- Previously, a county ordinance banned soliciting only while 'standing' in roadways, which solicitors circumvented by sitting.
- Police Chief Douglas Middleton, citing personal observation, officer reports, and citizen complaints about increased median solicitation, believed the practice was dangerous.
- Middleton urged the County Board of Supervisors to amend the ordinance to ban all solicitation in roadways, without consulting traffic-safety experts or providing data on accidents.
- The County Board of Supervisors amended the ordinance to prohibit any person from distributing handbills, soliciting contributions, or selling merchandise to vehicle occupants while in a 'highway,' which was defined to include roadways, medians, and shoulders.
- The amended ordinance applied to all roads throughout the county, regardless of their size, location, or traffic volume.
- The evidence of a safety problem consisted primarily of Middleton's opinion and a report noting an increase in calls for service regarding 'panhandling', mostly in the West End of the County.
Procedural Posture:
- Robert Reynolds, acting pro se, filed a lawsuit in the United States District Court against Henrico County, challenging the amended solicitation ordinance on First Amendment grounds.
- Both Reynolds and the County filed cross-motions for summary judgment.
- The district court denied Reynolds' motion and granted the County's motion for summary judgment, upholding the ordinance.
- Reynolds, now represented by counsel, appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Fourth Circuit.
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Issue:
Does a county ordinance that prohibits all forms of solicitation and handbilling in all public roadways and medians violate the First Amendment's protection of free speech when the government fails to produce evidence that the ordinance does not burden substantially more speech than necessary to achieve its public safety goals?
Opinions:
Majority - Chief Judge Traxler
Yes. The county ordinance violates the First Amendment because the County failed to carry its evidentiary burden to prove the ordinance is narrowly tailored. To satisfy intermediate scrutiny, the government must do more than assert a common-sense justification for a speech restriction; it must present evidence demonstrating that the regulation does not burden substantially more speech than is necessary to further its interests. Here, the County enacted a county-wide ban on solicitation to address a problem that its evidence indicated was localized to busy intersections in one part of the county. Citing the Supreme Court's recent decision in McCullen v. Coakley, the court reasoned that such a sweeping restriction is not narrowly tailored when the underlying problem is not shown to be widespread. Furthermore, the County failed to produce any evidence that it had tried to use less restrictive alternatives, such as enforcing existing traffic or loitering laws, or that such alternatives would be insufficient to address its safety concerns. Simply arguing that other methods would not work, without evidence of having tried them, is insufficient to justify a broad prophylactic ban on protected speech.
Analysis:
This decision, applying the Supreme Court's reasoning in McCullen v. Coakley, significantly strengthens the evidentiary requirements for governments seeking to justify time, place, and manner restrictions on speech under intermediate scrutiny. It clarifies that governments cannot rely on generalized assertions of 'common sense' or safety to justify geographically broad speech restrictions when the problem being addressed is localized. The ruling requires municipalities to build a factual record showing not only that a problem exists, but that the chosen regulatory solution is a proportional fit and that less speech-restrictive alternatives have been seriously considered and found inadequate. This raises the constitutional bar for cities and counties attempting to pass sweeping anti-panhandling or anti-solicitation ordinances.
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