Robert Reynolds v. Douglas Middleton

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2389

ROBERT S. REYNOLDS,

Plaintiff - Appellant,

v.

DOUGLAS A. MIDDLETON,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. John A. Gibney, Jr.,

District Judge. (3:12-cv-00779-JAG)

Argued: October 28, 2014 Decided: February 24, 2015

Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and DAVIS,

Senior Circuit Judge.

Vacated and remanded by published opinion. Chief Judge Traxler

wrote the opinion, in which Judge Diaz and Senior Judge Davis

joined.

ARGUED: Brian Timothy Burgess, GOODWIN PROCTER LLP, Washington,

D.C., for Appellant. Andrew Ramsey Newby, OFFICE OF THE COUNTY

ATTORNEY, Henrico, Virginia, for Appellee. ON BRIEF: William M.

Jay, Washington, D.C., Kevin P. Martin, GOODWIN PROCTER LLP,

Boston, Massachusetts, for Appellant. Joseph P. Rapisarda, Jr.,

Lee Ann Anderson, COUNTY OF HENRICO, Henrico, Virginia, for

Appellee.

TRAXLER, Chief Judge:

Robert Reynolds is homeless and supports himself by

soliciting donations in Henrico County, Virginia. Reynolds

brought an action raising First Amendment challenges to a

Henrico County ordinance that prohibits solicitation within

County roadways. The district court granted summary judgment in

favor of the County, and Reynolds appeals. For the reasons that

follow, we vacate the grant of summary judgment and remand for

further proceedings.

I.

Prior to 2012, Henrico County had an ordinance that

prohibited those “standing” in County roadways, which the

ordinance defined to include the medians, from distributing

handbills, soliciting contributions, or selling merchandise to

car drivers or passengers. Roadway solicitors got around the

ordinance by soliciting funds while sitting in the medians.

Police Chief Douglas Middleton, the named defendant, urged

the Henrico County Board of Supervisors to consider amending the

ordinance to prohibit all roadway solicitation while standing or

sitting. At a public hearing on the issue, Middleton stated

that the number of people soliciting while sitting in medians

had increased “[i]n the past few years and particularly the

current year,” J.A. 63, and that this increase had led to an

increased number of complaints from citizens. Middleton

2

explained that he believed soliciting from the median was

dangerous to the solicitors and to drivers and that prohibiting

median-solicitation would make the roads safer. Middleton

stated that “as chief of police I cannot ignore the increasingly

present danger that the current activities are creating, [and] I

would rather proceed to avoid a tragedy, and I am responding to

that in a proactive manner as opposed to being reactive.” J.A.

64.

Middleton did not consult traffic-safety or other experts

before seeking the changes to the ordinance, but based his

proposal on his opinion that it is unsafe to solicit “in the

highway,” an opinion that he based on his “personal

observations, the credible reports of other law-enforcement

officers and citizens, and [his] experience as a law-enforcement

officer for over 40 years.” J.A. 60. Middleton did not give

any specific examples of accidents or other problems caused by

median-solicitors in his deposition testimony or in his

statements at the public hearing.

The County Attorney’s Office prepared a report addressing

solicitation on County highways. The report stated that there

had been an “increased presence of [roadway solicitors] in

County highways, especially in the medians of numerous

intersections in the West End of the County,” J.A. 29, and that

“[n]umerous complaints have been received from County citizens

3

over the past several months,” J.A. 30. According to the

report, police received “97 calls for service concerning

panhandling” in 2011 and received 93 such calls in the first 8

months of 2012. J.A. 31. There is no other empirical evidence

in the record of actual problems caused by panhandling or

soliciting from medians.

The Board of Supervisors agreed with Middleton and voted to

amend the ordinance. The amended version of the ordinance (the

“Amended Ordinance”) provides as follows:

Sec. 22–195. Distributing handbills, soliciting

contributions or selling merchandise or services in

highway.

(a) It shall be unlawful for any person while in the

highway to:

(1) Distribute handbills, leaflets, bulletins,

literature, advertisements or similar material to the

drivers of motor vehicles or passengers therein on

highways located within the county.

(2) Solicit contributions of any nature from the

drivers of motor vehicles or passengers therein on

highways located within the county.

(3) Sell or attempt to sell merchandise or

services to the drivers of motor vehicles or

passengers therein on highways located within in the

county.

(b) For purposes of this section, the term “highway”

means the entire width of a road or street that is

improved, designed, or ordinarily used for vehicular

travel and the shoulder, the median, and the area

between the travel lane and the back of the curb.

4

J.A. 16. Given the definition of “highway,” the Amended

Ordinance prohibits a homeless person from sitting (or standing)

in a median with a sign asking for donations or offering to work

in exchange for food, but it permits, for example, campaign

workers with signs urging drivers to vote for their candidate to

gather in the medians. Solicitation and other activities

prohibited on the highways and medians remain permissible on

County sidewalks, which are not included in the definition of

“highway.”

Acting pro se, Reynolds brought this action challenging the

Amended Ordinance on First Amendment grounds. Reynolds and the

County cross-moved for summary judgment. The district court

denied Reynolds’ motion and granted the County’s. The court

recognized that streets and medians are traditional public

forums, but the court nonetheless upheld the Amended Ordinance

as a content-neutral and narrowly tailored time, place, and

manner restriction on speech. This appeal followed.

II.

There is no question that panhandling and solicitation of

charitable contributions are protected speech. See Clatterbuck

v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013).

There is likewise no question that public streets and medians

qualify as “traditional public forum[s].” Id. at 555; see

Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en

5

banc) (“Median strips, like sidewalks, are integral parts of the

public thoroughfares that constitute the traditional public

fora.”).

The government’s power to regulate speech in a traditional

public forum is “limited, though not foreclosed.” Clatterbuck,

708 F.3d at 555. Content-neutral time, place, and manner

regulations of speech in traditional public forums are subject

to intermediate scrutiny – that is, the restrictions must be

“narrowly tailored to serve a significant government interest

and leave open ample alternative channels of communication.”

Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert.

denied, 135 S. Ct. 183 (2014). A content-neutral regulation is

narrowly tailored if it does not “burden substantially more

speech than is necessary to further the government’s legitimate

interests.” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)

(internal quotation marks omitted). To be valid, the regulation

“need not be the least restrictive or least intrusive means of

serving the government’s interests. But the government still

may not regulate expression in such a manner that a substantial

portion of the burden on speech does not serve to advance its

goals.” Id. (internal quotation marks omitted).

Reynolds, now represented by counsel, challenges the

district court’s decision upholding the Amended Ordinance.

Reynolds argues that the County bears the burden of proof and

6

that the County’s evidence was insufficient to establish that

the Amended Ordinance is narrowly tailored or that it leaves

open ample alternative channels of communication. 1

III.

We begin with the burden of proof. “[W]here a plaintiff

claims suppression of speech under the First Amendment, the

plaintiff bears the initial burden of proving that speech was

restricted by the governmental action in question.” Lim v. City

of Long Beach, 217 F.3d 1050, 1054 n.4 (9th Cir. 2000); see

American Legion Post 7 v. City of Durham, 239 F.3d 601, 606 (4th

Cir. 2001) (threshold determination triggering application of

First Amendment scrutiny is whether challenged regulation

burdens speech). After the plaintiff makes his initial showing,

the burden then falls on the government to prove the

constitutionality of the speech restriction. See McCullen, 134

S. Ct. at 2540 (“To meet the requirement of narrow tailoring,

the government must demonstrate [that the speech restriction

1

Reynolds expressly does not challenge the district court’s

determination that the Amended Ordinance is content- neutral,

and we therefore do not consider that issue. We note that the

Supreme Court recently heard argument in a case involving the

content-neutrality of a town ordinance regulating temporary

signs. See Reed v. Town of Gilbert, S. Ct. Docket No. 13-502

(argued Jan. 12, 2015). In the event the Supreme Court’s

decision in Reed undermines the district court’s analysis of the

neutrality issue, the district court on remand will be free to

reconsider the issue. See, e.g., TFWS, Inc. v. Franchot, 572

F.3d 186, 191 (4th Cir. 2009) (noting exception to the law-of-

the-case doctrine for change in controlling legal authority).

7

meets the relevant requirements].” (emphasis added)); see also

Edenfield v. Fane, 507 U.S. 761, 770 (1993) (“It is well

established that the party seeking to uphold a restriction on

commercial speech carries the burden of justifying it.”

(internal quotation marks and alteration omitted)).

Here, Reynolds made the necessary threshold showing. As

discussed, solicitation of charitable contributions is speech,

and Reynolds alleged in his verified complaint that the Amended

Ordinance inhibits his ability to collect donations by requiring

him to move to locations where it is more difficult for drivers

to make contributions. 2 See Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991) (verified complaint “is the equivalent of an

opposing affidavit for summary judgment purposes, when the

allegations contained therein are based on personal knowledge”).

The County was therefore obligated to prove that the Amended

Ordinance is narrowly tailored to further a significant

government interest and that it leaves open ample alternative

channels of communication.

The more difficult issue -- and the issue on which this

appeal turns -- is determining precisely what the County must

present in order to carry its burden of proof. The County

2

As Reynolds explained in his complaint, “forcing him out

of the roadway results in the drivers[’] inability to hand him

money because they cannot reach across the passenger seat and

usually several more feet into Reynolds’ hand.” J.A. 9.

8

contends that intermediate scrutiny “does not always require an

evidentiary showing,” Brief of Respondent at 20, and that it is

entitled to rely on common sense and logic, as well case law and

the experience of other jurisdictions, when defending the

Amended Ordinance.

The County’s formulation certainly finds support in our

precedent. We have not required an evidentiary record to uphold

a speech regulation that is materially indistinguishable from

one that has been found constitutional by this court or the

Supreme Court. See Wag More Dogs, LLC v. Cozart, 680 F.3d 359,

365 n.3 (4th Cir. 2012) (“[C]onsistent with over thirty years of

case law from the Supreme Court and our court, [the County

defendant] has established that the Sign Ordinance passes

constitutional muster under the rubric of intermediate scrutiny.

It need not reinvent the wheel by coming forward with voluminous

evidence justifying a regulation of the type that has been

upheld several times over.”). 3 Likewise, we generally have not

3

Unlike the sign and billboard regulation in Wag More Dogs,

however, the Amended Ordinance is not one of a type that has

consistently been found constitutional. Courts have struck down

some solicitation bans and upheld others, with the outcome

turning on the details and wording of the various regulations

(such as whether the ban applied to medians) as well as the

evidentiary record developed by the parties. See, e.g., Comite

de Jornaleros de Redondo Beach v. City of Redondo Beach, 657

F.3d 936, 949 (9th Cir. 2011) (en banc) (striking down ordinance

banning solicitation of employment or contributions from all

city streets and medians in part because the City introduced

(Continued)

9

required the government to present evidence to show the

existence of a significant governmental interest; common sense

and the holdings of prior cases have been found sufficient to

establish, for example, that the government has a significant

interest in public safety. See Ross, 746 F.3d at 555; American

Legion Post 7, 239 F.3d at 609; cf. United States v. Chapman,

666 F.3d 220, 226-27 (4th Cir. 2012) (recognizing that “common

sense and case law” can establish the existence of governmental

interest in Second Amendment case subject to intermediate

scrutiny).

As to the other narrow-tailoring requirements, our cases

have not been entirely clear about what the government must

present in order to carry its burden. For example, we have held

that intermediate scrutiny “requires the government to produce

evidence that a challenged regulation materially advances an

important or substantial interest by redressing past harms or

preventing future ones.” Giovani Carandola, Ltd. v. Bason, 303

F.3d 507, 515 (4th Cir. 2002) (emphasis added; internal

evidence of traffic problems as to a few major streets and

medians but “offered no evidence to justify extending its

solicitation ban throughout the City in such a sweeping

manner”); Int’l Soc. for Krishna Consciousness of New Orleans,

Inc. v. City of Baton Rouge, 876 F.2d 494, 498 (5th Cir. 1989)

(discussing evidence presented at trial when upholding ordinance

prohibiting solicitation of employment, business or charitable

contributions from occupants of vehicles on street (defined to

include medians)).

10

quotation marks omitted). We have explained that although the

government need not “present a panoply of empirical evidence in

order to satisfy this standard, it must nonetheless make some

evidentiary showing that the recited harms are real, not merely

conjectural, and that the [challenged regulation] alleviates

these harms in a direct and material way.” Ross, 746 F.3d at

556 (emphasis added; citations, internal quotation marks and

alteration omitted). While these cases seem to insist on

evidence, we have in some cases nonetheless relied on things

other than objective evidence when determining that speech

restrictions advanced the government’s asserted interest. See,

e.g., Ross, 746 F.3d at 556 (relying on “appeals to common sense

and logic” (internal quotation marks omitted)); Educational

Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 589 (4th

Cir. 2010) (relying on “history, consensus, and common sense”).

In our view, however, the Supreme Court’s recent decision

in McCullen v. Coakley clarifies what is necessary to carry the

government’s burden of proof under intermediate scrutiny.

McCullen involved a First Amendment challenge to a Massachusetts

buffer-zone statute that prohibited standing on a “public way or

sidewalk within 35 feet of an entrance or driveway” of an

abortion clinic. McCullen, 134 S. Ct. at 2525. After a bench

trial on stipulated facts, the district court upheld the

statute, and the First Circuit affirmed. The Supreme Court

11

applied intermediate scrutiny – the same standard we apply in

this case – and reversed.

As to whether the statute furthered a significant

governmental interest, the Court referred to prior case law

recognizing the legitimacy of the government’s interests in

public safety and the unobstructed use of roadways and sidewalks

and then stated, without reference to any evidence presented at

trial, that “[t]he buffer zones clearly serve these interests.”

Id. at 2535. The Court nonetheless held that the statute was

not narrowly tailored because it burdened substantially more

speech than necessary to serve those interests. In rejecting

the Commonwealth’s narrow-tailoring arguments, the Court

repeatedly grounded its conclusions on the absence of evidence

supporting the Commonwealth’s arguments. See id. at 2539

(“Respondents point us to no evidence that individuals regularly

gather at other clinics, or at other times in Boston, in

sufficiently large groups to obstruct access.”); id. (rejecting

State’s argument that enforcing existing laws would not prevent

the safety and congestion problems addressed by the statute

because the Commonwealth did not identify “a single prosecution

brought under those laws within at least the last 17 years” and

therefore “has not shown that it seriously undertook to address

the problem with less intrusive tools readily available to it”);

id. at 2540 (“Given the vital First Amendment interests at

12

stake, it is not enough for Massachusetts simply to say that

other approaches have not worked.”).

We draw several lessons from the Court’s decision in

McCullen. First, the Court’s discussion of whether the statute

furthered an important governmental interest confirms that the

existence of a governmental interest may be established by

reference to case law. See id. at 2535. Second, the Court’s

flat declaration that “[t]he buffer zones clearly serve these

interests,” id., indicates that objective evidence is not always

required to show that a speech restriction furthers the

government’s interests. 4 Finally, the Court’s rejection of the

Commonwealth’s narrow-tailoring arguments makes it clear that

intermediate scrutiny does indeed require the government to

present actual evidence supporting its assertion that a speech

restriction does not burden substantially more speech than

necessary; argument unsupported by the evidence will not suffice

to carry the government’s burden. With these principles in

4

In McCullen, the relationship between the government’s

asserted interest and the challenged statute was obvious -- the

Commonwealth was concerned about congestion around abortion

clinics obstructing traffic and preventing access to the

clinics, and the statute prohibited people from gathering in

roadways around abortion clinics. In cases where the

relationship is not so obvious, we do not believe that McCullen

would relieve the government of its obligation to present

evidence showing that the speech regulation furthers its

asserted interests.

13

mind, we turn now to Reynolds’ substantive challenges to the

Amended Ordinance.

IV.

Reynolds argues the County failed to prove that the Amended

Ordinance is narrowly tailored to serve a significant

governmental interest.

A.

The County contends that the solicitation activities that

the Amended Ordinance prohibits can obstruct traffic and are

dangerous to drivers and solicitors alike, and that the Amended

Ordinance furthers the County’s interests in safety and

unobstructed use of its highways. Reynolds does not dispute

that the County’s asserted interests are legitimate and

substantial. See McCullen, 134 S. Ct. at 2535 (recognizing “the

legitimacy of the government’s interests in ensuring public

safety and order [and] promoting the free flow of traffic on

streets” (internal quotation marks omitted)); Brown v. Town of

Cary, 706 F.3d 294, 305 (4th Cir. 2013) (“It is beyond dispute

that the Town’s stated interests in promoting aesthetics and

traffic safety are substantial.”). Instead, Reynolds contends

that the County’s evidence was insufficient to establish that

the roadway-solicitation prohibited by the Amended Ordinance is

dangerous or that the Amended Ordinance actually furthers the

County’s asserted interests. We disagree.

14

Under intermediate scrutiny, the County is required to

demonstrate that the Amended Ordinance “materially advances an

important or substantial interest by redressing past harms or

preventing future ones.” Ross, 746 F.3d at 556 (internal

quotation marks omitted). Chief Middleton testified about the

increasing number of people soliciting contributions from

intersections, “many” of which are very busy, J.A. 102, and he

described potential dangers associated with that activity, see

J.A. 105 (noting that roadway solicitors might “misjudge the

traffic and step out in front of a car” and that an inattentive

driver might “run up onto the curb”). Even without evidence of

injuries or accidents involving roadway solicitors, we believe

the County’s evidence, particularly when it is considered along

with a healthy dose of common sense, is sufficient to establish

that roadway solicitation is generally dangerous. See Ross, 746

F.3d at 556 (explaining that the government “is entitled to

advance its interests by arguments based on appeals to common

sense and logic” (internal quotation marks omitted)).

And once we accept that roadway solicitation is dangerous,

then it is apparent that the Amended Ordinance furthers the

County’s safety interests. Indeed, we believe it is as obvious

that the Amended Ordinance furthers the County’s safety

interests as it was obvious that the statute in McCullen

furthered Massachusetts’ safety interests, as both move

15

pedestrians out of roadways and away from traffic. While the

record in this case does not establish how many people solicit

from the roadways or how many use the roadways for purposes

permitted by the Amended Ordinance, it does establish that

roadway solicitors had increased to a number sufficient to worry

a law-enforcement officer with 40 years’ experience and to

prompt hundreds of citizen complaints. Under these

circumstances, common sense and logic compel the conclusion that

by removing solicitors from County roadways, the Amended

Ordinance reduces the number of people engaging in a dangerous

activity and thus furthers the County’s safety interest in a

direct and material way.

B.

In addition to furthering a significant governmental

interest, a narrowly tailored regulation “must not burden

substantially more speech than is necessary to further the

government’s legitimate interests.” McCullen, 134 S. Ct. at

2535 (internal quotation marks omitted). As noted, the

regulation need not be the least restrictive means available,

“[b]ut the government still may not regulate expression in such

a manner that a substantial portion of the burden on speech does

not serve to advance its goals.” Id. (internal quotation marks

omitted).

16

Reynolds contends that if the County has established any

safety interest at all, that interest is limited to particularly

busy intersections, where Chief Middleton’s concerns were

focused. See J.A. 101 (“I think any time you have individuals

in an intersection, particularly busy intersections, that

there’s a public safety concern.”); J.A. 102 (“[W]ith traffic as

busy as it is in many of these intersections, and the volume

that was there, I was as concerned for the individuals that were

soliciting as I was for the drivers.”). Reynolds thus argues

that the Amended Ordinance burdens more speech than necessary

because it bans solicitation not just on the busiest or most

dangerous roads and intersections, but on all roadways and

medians in the County, without regard to whether solicitation

could be safely conducted there. See Weinberg v. City of

Chicago, 310 F.3d 1029, 1040 (7th Cir. 2002) (“The concerns

behind . . . the ordinance were to alleviate sidewalk congestion

[around the United Center]. . . . [W]e cannot see how this can

justify a restriction which prevents a peddler from selling his

wares in large parking lots, less congested walkways, or

sidewalks in less proximity to the United Center.”).

Reynolds also contends that the Amended Ordinance burdens

more speech than necessary because the County has other, less

restrictive means available to further its asserted interest.

According to Reynolds, the County could achieve its safety

17

interest by enforcing existing traffic laws -- such as those

governing jaywalking, obstructing traffic, loitering, and the

like -- against any roadway solicitors who in fact obstruct

traffic or otherwise cause problems. The County presented no

evidence demonstrating why these alternatives would not serve

its safety interest as effectively as the Amended Ordinance, and

Reynolds therefore argues that the district court erred in

finding the Amended Ordinance narrowly tailored.

Preliminarily, we note that the Amended Ordinance burdens a

wide range of protected speech. See Watchtower Bible & Tract

Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 165

(2002) (explaining that courts must consider “the amount of

speech covered by the ordinance and whether there is an

appropriate balance between the affected speech and the

governmental interests that the ordinance purports to serve”).

The Amended Ordinance prohibits all forms of leafletting, which

is one of the most important forms of political speech, see

McCullen, 134 S. Ct. at 2536 (“[H]anding out leaflets in the

advocacy of a politically controversial viewpoint is the essence

of First Amendment expression; no form of speech is entitled to

greater constitutional protection.” (internal quotation marks

and alteration omitted)), as well as soliciting any kind of

contribution, whether political or charitable, or selling or

attempting to sell goods or services. All of this speech is

18

constitutionally protected, and it is all prohibited. Indeed,

the only thing the Amended Ordinance prohibits is speech; no

portion of it is addressed to pure conduct, such as blocking

traffic.

Despite the broad swath of speech prohibited by the Amended

Ordinance, the County insists the Amended Ordinance is narrowly

tailored because it prohibits only the most dangerous kind of

roadway speech – “transactional” speech that “necessarily

invites physical interaction between pedestrians and motor

vehicles.” Brief of Respondent at 34. The County thus asserts

that the Amended Ordinance does not burden more speech than

necessary “because it only eliminates the precise problem

identified by the County – the disruption caused by

transactional speech in the middle of the highway.” Id. In the

County’s view, the dangers of roadway solicitation are the same

on busy roads and quiet back roads. Because the danger is

present on all roads, the County contends that it is appropriate

for the Amended Ordinance to apply to all county roads.

While the County’s arguments are not without some appeal,

they are essentially the same arguments made in McCullen, and

they fail here for the same reason they failed in McCullen –

lack of evidentiary support. The Amended Ordinance applies to

all County roads, regardless of location or traffic volume, and

includes all medians, even wide medians and those beside traffic

19

lights and stop signs. The Ordinance thus prohibits all

roadside leafletting and solicitation, even where those

activities would not be dangerous. The County’s evidence,

however, established, at most, a problem with roadway

solicitation at busy intersections in the west end of the

county. Given the absence of evidence of a county-wide problem,

the county-wide sweep of the Amended Ordinance burdens more

speech than necessary, just as the statute in McCullen -- a

statewide statute aimed at a problem in one location -- burdened

more speech than necessary. See McCullen, 134 S. Ct. at 2539

(“Respondents point us to no evidence that individuals regularly

gather at other clinics, or at other times in Boston, in

sufficiently large groups to obstruct access. For a problem

shown to arise only once a week in one city at one clinic,

creating 35–foot buffer zones at every clinic across the

Commonwealth is hardly a narrowly tailored solution.”).

The County also asserts that the Amended Ordinance is

narrowly tailored because other, less speech-restrictive methods

– specifically, the prior versions of the Ordinance – were

ineffective to control the problem. As to the other laws

identified by Reynolds, the County argues those laws “are no

substitute for the direct fit of the [Amended] Ordinance.

Solicitors are not loitering, and those camped out in medians

20

are not jaywalking, and yet they may still cause the disruption

identified by the County.” Brief of Respondent at 42.

As the Court explained in McCullen, however, the burden of

proving narrow tailoring requires the County to prove that it

actually tried other methods to address the problem. “Given the

vital First Amendment interests at stake, it is not enough for

[the government] simply to say that other approaches have not

worked.” McCullen, 134 S. Ct. at 2540. Instead, the government

must “show[] that it seriously undertook to address the problem

with less intrusive tools readily available to it,” id. at 2539

(emphasis added), and must “demonstrate that [such] alternative

measures . . . would fail to achieve the government’s interests,

not simply that the chosen route is easier,” id. at 2540

(emphasis added). In this case, the County simply presented no

evidence showing that it ever tried to use the available

alternatives to address its safety concerns. That is, there is

no evidence that the County ever tried to improve safety by

prosecuting any roadway solicitors who actually obstructed

traffic, or that it ever even considered prohibiting roadway

solicitation only at those locations where it could not be done

safely. Without such evidence, the County cannot carry its

burden of demonstrating that the Amended Ordinance is narrowly

tailored. See id. at 2539 (rejecting State’s argument that

enforcing existing laws would not prevent the safety and

21

congestion problems addressed by the buffer-zone law because the

State did not identify “a single prosecution brought under those

laws within at least the last 17 years”). The district court

therefore erred by finding County’s evidence sufficient to show

narrow tailoring.

V.

Although we have concluded that the County’s evidence

failed to establish that the Amended Ordinance was narrowly

tailored, we believe the proper course is to vacate and remand.

Our analysis in this case was driven by the Supreme Court’s

decision in McCullen, which was issued after the district

court’s ruling in this case. As we have explained, McCullen

clarified the law governing the evidentiary showing required of

a governmental entity seeking to uphold a speech restriction

under intermediate scrutiny. Because the parties did not have

McCullen’s guidance at the time they prepared their cross-

motions for summary judgment, we believe the County should have

an opportunity to gather and present evidence sufficient to

satisfy McCullen’s standard. Accordingly, we hereby vacate the

district court’s order granting summary judgment to the County

22

and remand for further factual development and additional

proceedings as may be required. 5

VACATED AND REMANDED

5

Because the evidence does not establish that the Amended

Ordinance is narrowly tailored, we are not required to consider

whether the Ordinance leaves open ample alternate channels of

communication. See McCullen v. Coakley, 134 S. Ct. 2518, 2540

n.9 (2014). Nonetheless, because the issue will likely arise on

remand, we briefly address it.

The “available alternatives need not be the speaker’s first

or best choice or provide the same audience or impact for the

speech.” Ross v. Early, 746 F.3d 546, 559 (4th Cir.), cert.

denied, 135 S. Ct. 183 (2014). Nonetheless, the alternatives

must be adequate. See Members of City Council of L.A. v.

Taxpayers for Vincent, 466 U.S. 789, 812 (1984) (“While the

First Amendment does not guarantee the right to employ every

conceivable method of communication at all times and in all

places, a restriction on expressive activity may be invalid if

the remaining modes of communication are inadequate.” (citation

omitted)). The district court noted that the Amended Ordinance

permits leafletting and solicitation on sidewalks and along the

side of the street and concluded that these alternatives were

sufficient as a matter of law. As indicated in his verified

complaint, however, Reynolds’ target audience is drivers, and

medians offer the most effective way to reach drivers. As

Reynolds explains, “medians – which are isolated from other

pedestrians, parked cars, and other obstacles that limit

visibility, and which can be seen by vehicles in two-way traffic

– offer unique benefits to speakers seeking to disseminate their

views.” Brief of Appellant at 50. While there is no question

that alternative channels of communication exist, Reynolds’

evidence raises a question of fact about the adequacy of those

alternatives. See Weinberg v. City of Chicago, 310 F.3d 1029,

1041 (7th Cir. 2002) (“[T]he simple fact that Weinberg is

permitted to communicate his message elsewhere does not end our

analysis if the intended message is rendered useless or is

seriously burdened.”). Because there are genuine questions of

material fact, summary judgment was inappropriate.

23