Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Expands Expression
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In July 2013, the City Council of Portland, Maine passed an ordinance prohibiting any person to “stand, sit, stay, drive or park on a median strip … except that pedestrians may use median strips only in the course of crossing from one side of the street to the other.” This measure was in response to public safety concerns due to an increase in panhandling on roadways throughout Portland.
In September 2013, three individuals affected by the ordinance brought an injunctive action in the U.S. District Court of Maine against the city. As the city officials interpreted the ordinance to also ban posting signs to communicate messages other than campaign messages, the district court held that the measure placed a content-based restriction on speech. After applying the strict scrutiny standard, the court declared the ordinance facially unconstitutional.
The city of Portland appealed the decision to the U.S. Court of Appeals for the First Circuit. The Court first found that the ordinance was a content-neutral restriction because it only concerned the place of speech. Applicable to a content-neutral restriction on speech in a traditional public forum, the Court held that the ordinance imposed “serious burdens” on speech and was capable of suppressing more speech than necessary to serve the city’s interest of maintaining public safety. It accordingly affirmed the district court’s judgment in declaring the ordinance facially unconstitutional under the First Amendment right to free speech.
Due to an increase in panhandling in public places, the City Council of Portland passed an ordinance prohibiting any person to “stand, sit, stay, drive or park on a median strip … except that pedestrians may use median strips only in the course of crossing from one side of the street to the other.” The ordinance codified under Portland City Code § 25–17(b) defined a median strip as “a paved or planted area of [a] public right-of-way, dividing a street or highway into lanes according to the direction of travel.”
In September 2013, three individuals brought an injunctive action in the U.S. District Court of Maine, seeking to enjoin the city from enforcing the ordinance. They challenged the ordinance under the First Amendment right to free speech. The court noted an official interpretation of the ordinance to exclude campaign signs from its reach, but not signs communicating other messages. As a result, it held that the ordinance as a content-based restriction of speech could not survive the strict scrutiny test and therefore, facially invalid under the First Amendment right to free speech.
The city of Portland appealed the decision to the U.S Court of Appeals for the First Circuit.
Circuit Judge Barron delivered the Court of Appeal’s opinion.
The first issue before the Court was whether the ordinance was a content-based restriction on speech. The Court held that the ordinance only concerned the place of speech; it did “not take aim at or give special favor to any type of messages conveyed in such a place because of what the message says.” It rejected the district court’s reference to Portland officials’ interpretation that the law only favored campaign messages. The Court relied on McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009), in which the First Circuit Court of Appeals ruled that “a state official’s interpretation of a statute, even if generally authoritative, cannot render an otherwise constitutional statute vulnerable to a facial challenge.” As a result, the Court concluded that the ordinance was a content-neutral limitation on speech.
The second issue before the Court was whether the ordinance was facially unconstitutional under the First Amendment. Under the jurisprudence of the First Amendment, a content-neutral restriction on speech in a traditional public forum is facially unconstitutional if the restriction is not “narrowly tailored to serve a significant governmental interest.” This standard requires only that a challenged speech restriction not burden “substantially” more speech than is necessary to further the government’s interest.
As applied to this case, the Court held that the ordinance imposed “serious burdens on speech.” It reasoned that the law on its face was capable of suppressing “virtually all activity on median strips and thus all speech on median strips, with a narrow exception only for speech that pedestrians may engage in while crossing the median strip in the course of crossing the street.” Notwithstanding the ordinance’s broad reach, the Court also examined the city’s purported interest in maintaining public safety. The city argued that the ordinance was necessary because it prevents pedestrians from standing on median strips where there are high risks of getting hit by passing vehicles. The Court, however, held that the ordinance could not a sufficient justification for the city’s concern, given its sweeping restriction on speech than necessary to serve the interest in preventing people on medians from being hit by drivers.
Based on the foregoing analysis, the Court declared the ordinance facially unconstitutional under the First Amendment right to free speech. Accordingly, it affirmed the district court’s judgment.
The Court of Appeals found that the Ordinance was content-neutral, as the District Court utilized an “official interpretation” of the statute (how it would be enforced) in deciding that the statute allowed campaign signs. This was looking at the statute as applied and not on it’s face, thus subjecting the Ordinance to a higher level of scrutiny than necessary. Therefore, the correct standard for a content-neutral statute is whether it is narrowly tailored to serve a significant governmental interest. However, because the ban included all expressive activity the Ordinance did not meet the standard of providing a compelling interest in public safety. The public safety interest could have been accomplished through a less restrictive means than the banning of all expressive activity.
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