Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

McCraw v. City of Oklahoma City.

No. 19-6008. W.D.Okla. Judge Lucero. First Amendment—Fourteenth Amendment Due Process—City Ordinance—Use of City Medians.

August 31, 2020

Plaintiffs are a group of Oklahoma City (City) residents, a political party, and a news organization. They use City medians to panhandle, engage in protests or other expressive activity, mount political campaigns, cover the news, or have personal conversations. Oklahoma City passed a revised ordinance (ordinance) prohibiting standing, sitting, or remaining for most purposes on medians on all streets with a speed limit of 40 mph or more. The ordinance essentially prohibited pedestrians on approximately 400 of the City’s 500 medians. Plaintiffs sued the City, contending that the ordinance violated their First and Fourteenth Amendment rights to use the medians.

The district court dismissed one plaintiff’s First Amendment claim and granted summary judgment to the City on the Fourteenth Amendment due process and vagueness claims. Following a bench trial, the court entered judgment against plaintiffs on all other claims.

Plaintiffs appealed the judgment. As to the First Amendment claims, to demonstrate a violation of First Amendment rights, a plaintiff must first establish that the activities in question are protected by the First Amendment. Next, the court must identify whether the challenged restrictions affect a public or nonpublic forum, which determination dictates the extent to which the government can restrict First Amendment activities. Lastly, the court must determine whether the proffered justifications for prohibiting speech satisfy the requisite standard of review. Here, the activities included panhandling, political speech, and engaging in communicative activities while jogging, which are protected speech. Second, the evidence overwhelmingly demonstrated that the City medians have traditionally been used for expressive activity, so they are a traditional public forum.

As to the standard of review, the ordinance failed intermediate scrutiny and thus also failed strict scrutiny. The Tenth Circuit therefore assumed that the ordinance is content-neutral. For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not burden substantially more speech than is necessary to further the government’s legitimate interests. Here, the City’s claims that it passed the ordinance to protect pedestrians and drivers were not supported by any empirical evidence, and the City failed to show that the ordinance would relieve those purported harms. Therefore, the City did not meet its burden of demonstrating that its interest is based on a concrete, non-speculative harm. In contrast, the ordinance severely burdened plaintiffs’ speech, and the City failed to demonstrate that less burdensome alternatives would not achieve its interest in median safety. Further, the ordinance was not narrowly tailored to the problem it purported to address, and adequate alternative channels of speech did not exist because the ordinance affected most of the City’s medians. Accordingly, the City failed to demonstrate that the ordinance is a constitutionally permissible time, place, and manner restriction, and the ordinance violates the First Amendment.

Plaintiffs also argued that the district court erred by dismissing their Fourteenth Amendment claim that they have a fundamental due process right to intrastate travel and thus to remain on the City’s medians. However, under Tenth Circuit precedent, there is no recognized fundamental right to purely intrastate travel. Therefore, the Tenth Circuit reviewed the due process claim under rational-basis review and determined that the ordinance passed this test because it is conceivably related to public safety.

Plaintiffs further contended that the ordinance is unconstitutionally vague, based on its definition of “emergency.” The term emergency is not unconstitutionally vague, and an ordinary person would know that plaintiffs’ actions on the medians do not require action that is sufficiently immediate and urgent to constitute an emergency, and therefore, an exception to the ordinance. Accordingly, the ordinance is not void for vagueness.

The dismissal of one plaintiff’s First Amendment claim and the entry of judgment for the City on all plaintiffs’ First Amendment claims were reversed and the case was remanded for further proceedings. The grant of summary judgment to the City on the vagueness and freedom of movement claims was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

Related Topics

First Amendment Fourteenth Amendment Due Process City Ordinance Use of City Medians

Back to the From the Courts Page