By Chad M. Zimlich

Today, in the civil case Reynolds v. Middleton, a published opinion, the Fourth Circuit vacated and remanded a finding of summary judgment in favor of Henrico County, Virginia.

A New Ordinance Restricting Speech

A homeless man, questioning the constitutionality of Henrico County’s amendment to an ordinance restricting panhandling while on a highway, brought the issue before the Fourth Circuit. The amended ordinance was found to be constitutional by the District Court of the Eastern District of Virginia, and the question presented was as to whether or not summary judgment in favor of the County had been appropriate.

Chief of Police Combats Panhandling Seeing It as an “Increasingly Present Danger”

Before 2012, the County had a prohibition on anyone standing on the road (including the medians) and distributing leaflets, asking for money, or selling goods. The Henrico County Board of Supervisors amended this prohibition after recommendations by Chief of Police, Douglas Middleton, urged the board to include “sitting” as well as standing within the activities prohibited. The recommendations were due to an increase in complaints that more and more individuals were soliciting while sitting in medians, which Chief Middleton saw as a possible traffic-safety concern. Without consulting traffic-safety or any other experts, and basing his opinion on his experience as a law-enforcement officer, he requested that the County Attorney’s Office prepare a report, and brought his concern to the Board of Supervisors, who passed the Amended Ordinance.

In response to no longer being able to solicit donations or offering to work in exchange for food, Robert S. Reynolds brought a pro se action challenging the Amended Ordinance under the First Amendment. Both the County and Reynolds made cross-motions for summary judgment, and the district court granted the County’s motion and denied Reynolds’ motion.

A Gamut of Old Rules and Newer Interpretations

The question of constitutionality under the First Amendment is not new, however, it is one that is still being defined. In a case like this, the government has the power to regulate speech in a traditional public forum (such as a median or public sidewalk), but that power is limited. The First Amendment requires regulations that are content-neutral in time, place, and manner of speech to be subject to intermediate scrutiny, or “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Basically, the regulation must not burden substantially more speech than necessary based on the interest.

A Question of Proof, and the Shifting of Burdens

The next rule to be iterated by the Fourth Circuit was that the burden of proof shifts in a First Amendment case depending on where you are in the question of constitutionality. It begins with a requirement that the plaintiff show the speech in question is protected by the First Amendment, and that the action by the government restricted that speech. Next, the burden shifts to the government to prove that the speech restriction was justified as per the relevant constitutional requirements.

Differing Evidentiary Standards and an Interpretation of McCullen

Finally, the Fourth Circuit explained that the issue of what the government must present evidentially depends on the speech regulation in question. The Fourth Circuit had not required some kind of evidentiary support to uphold speech regulations that are not materially distinguishable from regulations that have been found to be constitutional by the Fourth Circuit or the Supreme Court. Additionally, there is not normally a requirement to present evidence showing the existence of the governmental interest. However, in this case, the Fourth Circuit clarified that intermediate scrutiny, as seen through the recent Supreme Court case McCullen v. Coakley, required that the government “present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary.”

A Lack of Evidentiary Support and an Overbroad Prohibition of Speech

Reynolds first argued that the County did not have sufficient evidence that roadway-solicitation was dangerous or that the Amended Ordinance actually furthered the interest of traffic-safety. The court quickly disagreed with this argument, stating that the government interest was sufficiently shown by Chief Middleton’s testimony, along with a “healthy dose of common sense.”

Reynolds’ second argument, however, proved to be much more effective. He contended that, even if the interest was sufficient, the County failed to show that the regulation was narrowly tailored and did not substantially burden more speech than necessary. The Fourth Circuit agreed, noting that the danger asserted by the evidence provided was concerned with busy intersections. The Amended Ordinance, however, went far beyond this, eliminating virtually all speech while not restricting pure conduct such as physically blocking traffic. This included prohibiting the passing out of political leaflets, and soliciting charitable contributions, and the most protected kinds of speech. Furthermore, there was no evidentiary support that the Amended Ordinance was to combat a countywide problem, or that the County had tried to use available alternatives to address its safety concerns.

McCullen Says Lack of Evidence Means County Fails Intermediate Scrutiny

Because the County did not provide enough evidentiary support for its speech restriction to withstand intermediate scrutiny, it was not entitled to summary judgment. However, the Fourth Circuit decided to remand the case to provide the County an opportunity to gather and present evidence sufficient to satisfy the standard laid out in McCullen.