Albert Clatterbuck v. City of Charlottesville

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALBERT CLATTERBUCK; CHRISTOPHER 

MARTIN; EARL MCCRAW; JOHN

JORDAN; MICHAEL SLOAN,

Plaintiffs-Appellants,

v.



CITY OF CHARLOTTESVILLE,

No. 12-1149

Defendant-Appellee.

THE THOMAS JEFFERSON CENTER FOR

THE PROTECTION OF FREE

EXPRESSION,

Amicus Supporting Appellants.



2 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

ALBERT CLATTERBUCK; CHRISTOPHER 

MARTIN; EARL MCCRAW; JOHN

JORDAN; MICHAEL SLOAN,

Plaintiffs-Appellees,

v.



CITY OF CHARLOTTESVILLE,

No. 12-1215

Defendant-Appellant.

THE THOMAS JEFFERSON CENTER FOR

THE PROTECTION OF FREE

EXPRESSION,

Amicus Supporting Appellees.



Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, Senior District Judge.

(3:11-cv-00043-NKM-BWC)

Argued: December 5, 2012

Decided: February 21, 2013

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Reversed and remanded by published opinion. Judge Duncan

wrote the opinion, in which Judge Agee and Judge Davis

joined.

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 3

COUNSEL

ARGUED: Jeffrey Edward Fogel, Charlottesville, Virginia,

for Appellants/Cross-Appellees. Richard Hustis Milnor,

TAYLOR ZUNKA MILNOR & CARTER, LTD., Charlottes-

ville, Virginia, for Appellee/Cross-Appellant. ON BRIEF:

Steven D. Rosenfield, ACLU OF VIRGINIA, Charlottesville,

Virginia; Rebecca K. Glenberg, Thomas O. Fitzpatrick,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA

FOUNDATION, INC., Richmond, Virginia, for

Appellants/Cross-Appellees. J. Joshua Wheeler, Clayton N.

Hansen, THE THOMAS JEFFERSON CENTER FOR THE

PROTECTION OF FREE EXPRESSION, Charlottesville,

Virginia, for Amicus Supporting Appellants/Cross-Appellees.

OPINION

DUNCAN, Circuit Judge:

This case presents the question of whether a municipal

ordinance, which prohibits individuals from soliciting imme-

diate donations near two streets that run through the Down-

town Mall in Charlottesville, Virginia, unconstitutionally

restricts the free speech of individuals who regularly beg on

the Downtown Mall. We hold that the district court erred by

resolving this issue at the pleadings stage, and reverse and

remand for further proceedings.

I.

A.

The City of Charlottesville (the "City") has adopted an

ordinance that proscribes "soliciting" in certain areas of the

4 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

City. Section 28-31 of the Charlottesville City Code (the "Or-

dinance") reads in relevant part1 as follows:

(a) It shall be unlawful for any person to solicit

money or other things of value, or to solicit the sale

of goods or services:

...

(9) On the Downtown Mall within fifty (50)

feet (in any direction) of 2nd Street West

and 4th Street East, when those streets are

open to vehicular traffic.

...

Solicit means to request an immediate donation of

money or other thing of value from another person,

regardless of the solicitor’s purpose or intended use

of the money or other thing of value. A solicitation

may take the form of, without limitation, the spoken,

written, or printed word, or by other means of com-

munication (for example: an outstretched hand, an

extended cup or hat, etc.).

(c) Any person violating the provisions of this sec-

tion shall be guilty of a Class 3 misdemeanor.

Charlottesville City Code, § 28-31 (as amended Aug. 16,

2010); J.A. 14.

Albert Clatterbuck, Christopher Martin, Earl McCraw, John

Jordan, and Michael Sloan (collectively, "Appellants") are

"impecunious and reliant to a certain extent on begging to

1

Although Appellants initially challenged several provisions of the

Ordinance, they limit their argument on appeal to a facial challenge of

subsection (a)(9).

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 5

sustain [themselves.]" J.A. 7. One of the locations where each

Appellant begs is "East Main Street in the City, commonly

known as the Downtown Mall." Id. The complaint alleges few

facts about the Downtown Mall, other than that it "has numer-

ous restaurants and cafes with outdoor seating, and [Appel-

lants] regularly beg within view of those restaurants and

cafes." Id.

B.

Appellants brought this action under 42 U.S.C. § 1983

against the City to challenge the constitutionality of the Ordi-

nance, asserting that it violates their First Amendment right to

beg, impermissibly restraining their protected speech activi-

ties and livelihood. The complaint alleges that the City

adopted the Ordinance "in order to restrict the right of the

impoverished to solicit funds for their own well-being," and

challenges the Ordinance as a content-based regulation that

criminalizes speech based on the content of the communica-

tion. J.A. 9. Further, the complaint states that "[a]s a direct

and proximate result of the conduct of [the City] in enacting

the ordinance, [Appellants] have and will continue to suffer

harm, including, but not limited to damages to the right to

communicate to the general public as well as emotional dis-

tress." Id. at 9-10. Appellants seek declaratory and injunctive

relief, damages, and attorneys’ fees and costs.

The City filed a motion to dismiss the action for lack of

standing and for failure to state a claim pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively.

The district court found Appellants had standing, but dis-

missed the action for failing to allege a cognizable First

Amendment violation. The court reasoned that the Ordinance

constitutes a content-neutral, permissible time, place, and

manner restriction. Appellants timely appealed the district

court’s decision to dismiss the action, and the City cross-

appealed to challenge the district court’s determination that

Appellants have standing to bring their claim.

6 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

II.

We first address the City’s argument that Appellants do not

have standing to bring this First Amendment challenge to the

Ordinance. Finding that they do, we next turn to Appellants’

claim itself, and conclude that it was improperly dismissed at

the pleadings stage.

A.

The threshold issue of standing is a legal question that we

examine de novo. See Benham v. City of Charlotte, 635 F.3d

129, 134 (4th Cir. 2011). As the party asserting federal juris-

diction, Appellants bear the burden of establishing they have

standing to invoke the authority of a federal court—a burden

which tracks the manner and degree of evidence required at

each successive stage of litigation. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992). Accordingly, at the pres-

ent pre-discovery pleadings stage, "general factual allegations

of injury resulting from the [City’s] conduct may suffice, for

on a motion to dismiss we presume that general allegations

embrace those specific facts that are necessary to support the

claim." Id. (internal quotation marks and alterations omitted);

see also Bishop v. Bartlett, 575 F.3d 419, 424 (4th Cir. 2009).

In order to possess standing to bring this action in federal

court, Appellants must show the three familiar elements of

constitutional standing: injury-in-fact, causation, and redres-

sability. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 180-81 (2000). The essence of the

standing inquiry is whether the party seeking to invoke fed-

eral jurisdiction has "alleged such a personal stake in the out-

come of the controversy as to assure that concrete adverseness

which sharpens the presentation of issues upon which the

court so largely depends for illumination of difficult constitu-

tional questions." Baker v. Carr, 369 U.S. 186, 204 (1962).

We agree with the district court that Appellants have done so

here for the purposes of the motion to dismiss.

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 7

As a preliminary matter, we note that the speech and

expressive conduct that comprise begging merit First Amend-

ment protection. The Supreme Court has held that the solicita-

tion of "charitable contributions" is protected speech. Riley v.

Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 789 (1988).

Several of our sister circuits have extended that holding to

begging, which is simply solicitation on behalf of the speaker.

See, e.g., Smith v. City of Fort Lauderdale, 177 F.3d 954, 956

(11th Cir. 1999) ("Like other charitable solicitation, begging

is speech entitled to First Amendment protection."); Loper v.

New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir. 1993)

("We see little difference between those who solicit for orga-

nized charities and those who solicit for themselves in regard

to the message conveyed. The former are communicating the

needs of others while the latter are communicating their per-

sonal needs. Both solicit the charity of others. The distinction

is not significant for First Amendment purposes."). We agree

that begging is communicative activity within the protection

of the First Amendment.

The City argues on cross-appeal that Appellants lack stand-

ing because they failed to allege that they have begged in the

past, or wish to beg in the future, specifically within the two

fifty-foot "buffer zones" when those streets are open to vehic-

ular traffic, as prohibited by the Ordinance. According to the

City, this lack of specificity prevents us from knowing

whether Appellants are actually harmed by subsection (a)(9)

of the Ordinance—i.e., whether they can establish an injury-

in-fact for standing purposes. Because we find Appellants

have pleaded sufficiently specific facts to demonstrate they

have suffered "an invasion of a legally protected interest,"

White Tail Park, Inc. v. Stroube, 413 F.3d 451, 460 (4th Cir.

2005) (internal quotation marks omitted), that is "concrete and

particularized" and "actual or imminent," rather than "conjec-

tural or hypothetical," Lujan, 504 U.S. at 560 (internal quota-

tion marks omitted), we disagree.

Although the complaint does not allege that Appellants

have begged or plan to beg specifically within the fifty-foot

8 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

buffer zones, it does, more generally, allege that Appellants

regularly beg on the Downtown Mall, and that they suffer

harm by being prevented from fully exercising their First

Amendment rights. These "general factual allegations . . . may

suffice . . . on a motion to dismiss [to allow us to] presume

that [they] embrace those specific facts that are necessary to

support the claim." Id. at 561 (internal quotation marks omit-

ted). We decline the City’s invitation to rigidly impose such

a precise level of specificity at the pleadings stage.

The Ordinance, which prohibits solicitation within a sub-

section of the Mall, actually and concretely impacts Appel-

lants’ general begging activities on the Mall as described in

their complaint. Indeed, the Ordinance may constitute a cog-

nizable injury to Appellants merely by interfering with or cre-

ating the "‘need[ ] to plan the substance and placement of’"

their speech. Benham, 635 F.3d at 135 (quoting Va. Soc’y for

Human Life, Inc. v. FEC, 263 F.3d 379, 389 (4th Cir. 2001)).

Further, the Ordinance limits not only the area available for

Appellants’ speech activities, but also the audience. "A regu-

lation that reduces the size of a speaker’s audience can consti-

tute an invasion of a legally protected interest." White Tail

Park, 413 F.3d at 461.

For these reasons, we find Appellants’ allegations substan-

tiate their standing2 to bring this constitutional challenge.

Even without specifically alleging they have begged within

the buffer zones, Appellants’ allegations that the Ordinance

restricts and deters their begging activity on the Mall form the

basis for a cognizable injury under the First Amendment at

this juncture.

2

The City does not challenge the sufficiency of Appellants’ allegations

as to the second and third prongs of the standing inquiry—causation and

redressability. Finding these prongs satisfied, we omit discussion of them.

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 9

B.

We turn next to examine whether Appellants’ claim that the

Ordinance violates the First Amendment was adequately

pleaded in their complaint. We review the district court’s dis-

missal of Appellants’ claim de novo, accepting as true the

facts alleged in the complaint. Wag More Dogs, LLC v.

Cozart, 680 F.3d 359, 364-65 (4th Cir. 2012); Aziz v. Alcolac,

Inc., 658 F.3d 388, 391 (4th Cir. 2011). To survive a Rule

12(b)(6) motion to dismiss, a complaint must establish "facial

plausibility" by pleading "factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). "At bottom, a plaintiff must ‘nudge[ ] [its] claims

across the line from conceivable to plausible’ to resist dis-

missal." Wag More Dogs, 680 F.3d at 365 (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

1.

Before determining the sufficiency of Appellants’ allega-

tions, we must first ascertain the appropriate First Amend-

ment framework to apply to their claim.

We start with the relatively uncontroversial premise that

begging on the Downtown Mall constitutes expressive activ-

ity in a traditional public forum, which garners the full protec-

tive force of the First Amendment. We then examine the type

of restriction imposed by the Ordinance, and find that the

proper standard cannot be determined, or applied, at this stage

of the proceedings.

a.

We have already explained that begging constitutes pro-

tected speech. Additionally, by restricting speech near streets

on the Downtown Mall, the Ordinance regulates a quintessen-

10 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

tial public forum over which the First Amendment’s shield is

strongest.

"In places which by long tradition or governmental fiat

have been devoted to assembly and debate, the rights of the

state to limit expressive activity are sharply circumscribed."

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

37, 45 (1983). Although there is very little information about

the Downtown Mall in the record, places such as parks,

streets, and sidewalks fall into "the category of public prop-

erty traditionally held open to the public for expressive activ-

ity." Loper, 999 F.2d at 704; see also Smith, 177 F.3d at 956;

ISKON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 954 (D.C.

Cir. 1995) (Mall in Washington, D.C. constitutes a traditional

public forum). Indeed, the Supreme Court has repeatedly

referred to public streets and sidewalks as "‘the archetype of

a traditional public forum.’" Snyder v. Phelps, ___ U.S. ___,

131 S.Ct. 1207, 1218 (2011) (quoting Frisby v. Schultz, 487

U.S. 474, 480 (1988)). With this strength of authority, and

without any indication to the contrary, we conclude that the

Downtown Mall constitutes a traditional public forum.

Because Appellants seek to engage in protected speech in

a traditional public forum, the government’s power to regulate

that speech is limited, though not foreclosed. The government

may impose reasonable content-neutral time, place, and man-

ner restrictions that are narrowly tailored to serve a significant

government interest and leave open ample alternative chan-

nels of communication. Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989). If the regulation is content-based, how-

ever, we apply strict scrutiny. Perry, 460 U.S. at 45. Under

that heightened standard, we may uphold the regulation only

if it is the least restrictive means available to further a com-

pelling government interest. Id. Thus, our final step in estab-

lishing the appropriate First Amendment framework requires

us to determine whether the Ordinance is content-based or

content-neutral. See Schultz, 487 U.S. at 481 ("[T]he appro-

priate level of scrutiny is initially tied to whether the statute

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 11

distinguishes between prohibited and permitted speech on the

basis of content."). We turn to this inquiry next.

b.

The government’s restriction of speech is content-neutral if

it is "‘justified without reference to the content . . . of the reg-

ulated speech.’" Christian Legal Soc’y v. Martinez, ___ U.S.

___, 130 S.Ct. 2971, 2994 (2010) (quoting Ward, 491 U.S. at

791). On the other hand, a restriction is content-based if it was

"adopted . . . because of disagreement with the message [the

speech] conveys." Ward, 491 U.S. at 791. In this inquiry,

"[t]he government’s purpose is the controlling consideration."

Id.

In evaluating challenges to municipal sign ordinances, we

have adopted a pragmatic rather than formalistic approach to

evaluating content neutrality. See Wag More Dogs, 680 F.3d

at 366; Brown v. Town of Cary, ___ F.3d ___, 2013 WL

221978, slip op. at 11-13 (4th Cir. Jan. 22, 2013). Under this

practical analysis, not every content distinction merits strict

scrutiny; instead, a distinction is only content-based if it dis-

tinguishes content "with a censorial intent to value some

forms of speech over others to distort public debate, to restrict

expression because of its message, its ideas, its subject matter,

or to prohibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable." Brown, slip op.

at 11 (internal citations and alterations omitted).

In deciphering censorial intent, Brown looked to the "rela-

tionship—or lack thereof—between the content distinction

and the legislative end." Id. at 14. In so doing, we have exam-

ined whether the government’s content-neutral justification

reasonably comports with the content distinction on the face

of the regulation. See Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 642-43 (1994) ("[T]he mere assertion of a content-

neutral purpose [is not] enough to save a law which, on its

face, discriminates based on content.").

12 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

Here, the district court concluded that the Ordinance is

content-neutral because it "does not distinguish between

favored and disfavored solicitation," Clatterbuck v. City of

Charlottesville, 841 F. Supp. 2d 943, 953 (W.D. Va. 2012),

but rather "applies to all forms of solicitations, regardless of

the solicitor’s purpose or the content of the solicitor’s

speech," id. at 950. We cannot agree. The Ordinance plainly

distinguishes between types of solicitations on its face.

Whether the Ordinance is violated turns solely on the nature

or content of the solicitor’s speech: it prohibits solicitations

that request immediate donations of things of value, while

allowing other types of solicitations, such as those that request

future donations, or those that request things which may have

no "value"—a signature or a kind word, perhaps.

But we do not end our inquiry there. Having determined

that the Ordinance’s speech restriction is based on a content

distinction, our pragmatic approach asks next whether the

City "has distinguished [speech] because of its content," and

is consequently content-based. Brown, slip op. at 15. In our

recent decision in Brown, faced with the "distinctive prob-

lems" posed by municipal sign ordinances, we applied this

pragmatic inquiry and declined to find a censorial purpose.

See id. However, Brown reviewed the constitutionality of a

different kind of expressive activity at a different procedural

posture, when more facts were at play and evidence could be

evaluated. In contrast, here we are bound—like the district

court—to evaluate Appellants’ claims based on the suffi-

ciency of their pleadings, not based on the government’s

asserted evidence or our own independent judgment of likely

purposes. We find ourselves ill-equipped to reach a conclu-

sion as to censorial purpose, based on the record before us, at

this juncture. We are compelled to conclude that the district

court erred in finding the Ordinance content-neutral as a mat-

ter of law and dismissing the case on a Rule 12(b)(6) motion

to dismiss.

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 13

2.

Deeming the Ordinance a constitutional, content-neutral

time, place, and manner regulation, the district court reasoned

that "the restrictions at issue in the instant case are limited to

‘situations in which people most likely would feel a height-

ened sense of fear or alarm, or might wish especially to be left

alone.’" Clatterbuck, 841 F. Supp. 2d at 951 (quoting

Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000)).

Although the district court purported to reach its conclusion

"on the face of the ordinance," it indicated in a footnote its

reliance on video archives of the Charlottesville City Council

meetings on August 2 and 16, 2010, which the City refer-

enced in its reply brief in support of its motion to dismiss. Id.

at 952 n.7. Stating that the archives "are a matter of public

record available for viewing at www.charlottesville.org," the

district court summarized the information "disclosed" during

these meetings as follows: "[T]he 50-foot buffer zone in the

vehicular crossings was proposed as ‘absolutely crucial for

the safety and security’ of Mall patrons because pedestrians

were being ‘distracted’ in and near the crossings." Id.3 In con-

sidering these statements as evidence supporting the govern-

ment’s non-censorial purpose, the district court erred by

impermissibly reaching outside the pleadings to make find-

ings of fact.

Ordinarily, a court may not consider any documents that

are outside of the complaint, or not expressly incorporated

therein, on a motion to dismiss. Braun v. Maynard, 652 F.3d

557, 559 n.1 (4th Cir. 2011). Rule 12(d) specifies:

If, on a motion under Rule 12(b)(6) or 12(c), matters

outside the pleadings are presented to and not

excluded by the court, the motion must be treated as

3

We omit the remaining portion of the district court’s lengthy summary

of the city council meetings, because it pertains to the Ordinance’s restric-

tions around outdoor cafes and vendors, not relevant to this appeal.

14 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

one for summary judgment under Rule 56. All par-

ties must be given a reasonable opportunity to pre-

sent all the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d). Here, although the district court consid-

ered—and relied on—the extrinsic evidence offered by the

City along with its reply brief, it did not convert the City’s

motion into one for summary judgment.

Nevertheless, the City argues that the district court’s con-

sideration of the city council meeting archives was proper

because those meetings are public records. This argument

relies on a narrow exception to the principle embodied in Rule

12(d) that allows a court to consider facts and documents sub-

ject to judicial notice without converting the motion into one

for summary judgment. See Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat’l

Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011). Under this

exception, courts may consider "relevant facts obtained from

the public record," so long as these facts are construed in the

light most favorable to the plaintiff along with the well-

pleaded allegations of the complaint. B.H. Papsan v. Allain,

478 U.S. 265, 283 (1986). The information considered by the

district court here was neither a "fact," nor was it construed

in the light most favorable to Appellants.

In some circumstances, the government’s purpose as stated

in a legislative record may constitute a fact obtained from

public record and subject to judicial notice. For example, in

Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th

Cir. 1995), judgment vacated on other grounds, 517 U.S.

1206 (1996), readopted, 101 F.3d 325 (4th Cir. 1996), cert.

denied, 520 U.S. 1204 (1997), we reviewed the propriety of

considering on a motion to dismiss the legislative history of

an ordinance, including a transcript of hearings before the city

council and four studies that the city council considered as

support for the ordinance. There, we concluded that the ordi-

nance itself and its legislative history were "‘legislative facts,’

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 15

the substance of which cannot be trumped" upon judicial

review, and are "not a matter beyond the pleadings but . . . an

adjunct to the ordinance which may be considered by the

court as a matter of law" in the context of a First Amendment

challenge. Id.

The narrow exception applied in Anheuser-Busch does not,

however, grant the district court carte blanche to label any

information a "legislative fact" merely because it was gar-

nered from the public record associated with the enactment of

an ordinance. The district court here quoted a citizen speaking

at a city council meeting in support of the proposed ordinance,4

apparently treating that statement as a fact of legislative pur-

pose. In this context, the opinion of an individual citizen

about an ordinance does not qualify as a fact of public record

proper for judicial notice. This is particularly so given the

requirement that facts be construed in the light most favorable

to the Appellants here.

Further, whether information is the proper subject of judi-

cial notice depends on the use to which it is put. Cf. United

States v. Bello, 194 F.3d 18, 22 (1st Cir. 1999) (stating that

the propriety of the district court’s decision to take judicial

notice "depends not on the nature of the fact . . . but rather on

the use made of it . . . and the same fact can play either role

depending on context"). The district court used the video

archives as evidence of the Ordinance’s content-neutrality,

relying on that evidence to conclude that the Ordinance was

necessary, according to the City, for the safety and security of

4

In the sections cited by the City, three people spoke as concerned citi-

zens, two in support of restricting "panhandling" around streets with

vehicular traffic, and one—Jeffrey Fogel, now an attorney of record for

Appellants cooperating with the ACLU—vehemently opposed to the Ordi-

nance, which he described as an attack on impoverished people in the

Downtown Mall that he predicted will be enforced only against poor peo-

ple. See 8/2/2010 meeting at 34:00-37:09, 1:35:06-1:49:35; 8/16/2010

meeting at 1:34:00-1:38:27, 2:07:53-2:12:03 (video archive available at

www.charlottesville.org).

16 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

individuals on the Mall. At the pleadings stage, at least, this

was error. See Global Network Commc’ns, Inc. v. City of New

York, 458 F.3d 150, 155 (2d Cir. 2006). On a motion pursuant

to Rule 12(b)(6), the court’s task is to test the legal feasibility

of the complaint without weighing the evidence that might be

offered to support or contradict it. It is this task to which we

now return.

3.

Construing the facts contained in the pleadings in the light

most favorable to Appellants, as we must, the complaint plau-

sibly alleges that the City enacted the Ordinance with a censo-

rial purpose and in violation of the First Amendment.

The Ordinance does not contain a statement of purpose, and

no evidence is properly before us to indicate the City’s reason

or reasons for enacting the Ordinance. To be sure, the City

has advanced some plausible arguments that it enacted the

Ordinance without any censorial purpose and with a compel-

ling, content-neutral justification. These rationales addition-

ally find support in First Amendment jurisprudence. See, e.g.,

United States v. Kokinda, 497 U.S. 720, 733-34 (1990)

("Solicitation impedes the normal flow of traffic. Solicitation

requires action by those who would respond: The individual

solicited must decide whether or not to contribute (which

itself might involve reading the solicitor’s literature or hearing

his pitch), and then, having decided to do so, reach for a wal-

let, search it for money, write a check, or produce a credit

card." (internal citations omitted)); Gresham, 225 F.3d at 906

("The city has a legitimate interest in promoting the safety

and convenience of its citizens on public streets.").

Without any facts before us pertaining to the government’s

reasons for enacting the Ordinance, however, forming conclu-

sions about these asserted purposes becomes mere conjecture.

Indeed, in the cases just cited, and many others proffered by

the City to support content-neutrality, the government’s justi-

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 17

fication for the regulation was established in the record, and

the court was able to weigh evidence supporting that justifica-

tion. See, e.g., Gresham, 225 F.3d at 906 ("The city deter-

mined that vocal requests for money create a threatening

environment or at least a nuisance for some citizens."). Like-

wise, in Brown, we found at the summary judgment stage that

a sign regulation, which distinguished speech based on its

content, was content-neutral where its "exemptions reason-

ably advance the legislative interests of traffic safety and aes-

thetics," slip op. at 15, and the government "adequately

documented its aesthetic concerns," id. at 17. There we relied

on legislative findings (the regulation’s preamble, policy

statements, and testimony of government officials) that "un-

regulated signage would depress property values, cause visual

blight, deter commercial and residential growth, harm envi-

ronmental resources, and diminish the wholesome character

of the Town," and our own finding based on the record that

the appellee’s actions in violating the regulation (spraying

bright fluorescent lettering across the side of his home) impli-

cated safety concerns because both a police officer and pass-

ing motorist had been distracted. Id. No such findings or

evidentiary record exist here.

Because we cannot determine the City’s purpose in enact-

ing the Ordinance or assess the strength of its underlying con-

cerns, we cannot be sure of a reasonable fit between the

content distinction made in the Ordinance—singling out

requests for immediate donations—and the City’s justification

for that distinction. Cf. Ward, 491 U.S. at 791; Wag More

Dogs, 680 F.3d at 366; Brown, slip op. at 14-15. Accordingly,

we cannot accept the district court’s conclusion that the Ordi-

nance does not distinguish protected speech because of the

message it conveys.

Beyond our inability to determine that the Ordinance is

content-neutral, without evidence about the City’s purpose we

are further unable to weigh how compelling the City’s interest

is, nor whether the Ordinance is narrowly tailored to that

18 CLATTERBUCK v. CITY OF CHARLOTTESVILLE

interest. Similarly, without any evidence in the record about

the Downtown Mall itself, we have no way of determining

that the Ordinance leaves open ample alternative means of

communication.

We are unable at this point to accept the City’s possible

justifications over the plausible censorial purpose alleged by

Appellants: that the City enacted the Ordinance to reduce the

presence of impoverished people on the Downtown Mall. In

contrast to Wag More Dogs, in which we affirmed the dis-

missal of a First Amendment claim on the pleadings where

the plaintiff "ha[d] not alleged—nor could it—that [the gov-

ernment] regulated speech through the [ordinance] because of

disagreement with the message it conveys," 680 F.3d at 368

(internal quotation marks omitted), here Appellants have spe-

cifically alleged that the City intended to prevent their unde-

sired presence on the Mall—in other words, that the

regulation exists to prevent Appellants from conveying their

unwanted message. Cf. Loper, 999 F.2d at 704 ("Begging fre-

quently is accompanied by speech indicating the need for

food, shelter, clothing, medical care or transportation. Even

without particularized speech, however, the presence of an

unkempt and disheveled person holding out his or her hand or

a cup to receive a donation itself conveys a message of need

for support and assistance.").

It is not implausible that the City singled out requests for

immediate donations in an attempt to target the particular nui-

sance of beggars’ speech but allow other types of solicitation

to continue. We find Appellants’ allegation a reasonable one,

and must accept it as true at this stage. See Aziz v. Alcolac,

658 F.3d at 390. Thus, we find that Appellants have nudged

their claim that the City enacted a content-based regulation,

which is not the least restrictive means of furthering a com-

pelling government interest, across the line from conceivable

to plausible. See Wag More Dogs, 680 F.3d at 365; Twombly,

550 U.S. at 570.

CLATTERBUCK v. CITY OF CHARLOTTESVILLE 19

III.

For the reasons set forth herein, the judgment below is

REVERSED AND REMANDED.