Association of Community Organizations for Reform Now v. St. Louis County, 89-3011

• Decision Date: 08 April 1991
• Docket Number: No. 89-3011,89-3011
• Citation: 930 F.2d 591
• Parties: ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW a/k/a ACORN, and David Clohessy, Appellants, v. ST. LOUIS COUNTY; Gilbert H. Kleinknecht, Superintendent of Police, St. Louis County; and Lester A. Liebmann, Director of Department of Revenue, St. Louis County, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 591

930 F.2d 591

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW a/k/a ACORN, and David Clohessy, Appellants, v. ST. LOUIS COUNTY; Gilbert H. Kleinknecht, Superintendent of Police, St. Louis County; and Lester A. Liebmann Director of Department of Revenue, St Louis County, Appellees.

No. 89-3011.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1990.

Decided April 8, 1991.

John D. Lynn, St. Louis, Mo., for appellants.

Michael E. Shuman of Clayton, Mo., for appellees.

Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge, and CONMY, ^* District Judge.

JOHN R. GIBSON, Circuit Judge.

This case presents a first amendment challenge to a traffic code provision prohibiting solicitation in the roadways of St. Louis County, brought by ACORN, a non-profit advocacy organization, and one of its members, against St. Louis County, Missouri, its Superintendent of Police and its Director of Revenue. After a bench trial, the district court ¹ held that the challenged regulation is a permissible time, place and manner restriction serving the government's interest in safety and traffic efficiency and entered judgment for St. Louis County. Association of Community Organization for Reform Now v. St. Louis County, 726 F.Supp. 747 (E.D.Mo.1989). ACORN appeals, arguing that its method of in-the-roadway solicitation is safe, and that St. Louis County could have achieved its desired result in a less restrictive manner. We affirm.

I.

ACORN has in the past raised money in St. Louis County by soliciting donations from drivers at busy intersections in an operation it calls a "toll road". ACORN's practice is to post solicitors at intersections with traffic lights. They wait on medians or on the sidewalk or road shoulder until the light turns red. Then they walk into the street and approach the stopped vehicles carrying cans for collecting money and "tags," which are little slips of paper with information about ACORN. They start with the first car at the light, then work their way down the row, briefly telling each driver about one of ACORN's goals, asking him for a contribution and giving him a tag. Solicitors may be in each of several lanes of traffic at an intersection, including lanes that are not adjacent to a median or curb. Sometimes, ACORN stations someone at the intersection to shout at the solicitors when the light for the cross street turns yellow, and sometimes the solicitors depend on familiarity with the length of the red light or cues from sounds and driver behavior. In any case, ACORN's ideal is that the solicitors leave the roadway when the light for the cross street turns yellow. ACORN had for a number of years obtained permits from St. Louis County for its solicitation activities.

St. Louis County Traffic Code Sec. 1209.090, enacted on November 22, 1985, provides:

Pedestrians Soliciting Rides or Business--1. No person shall stand in a roadway for the purpose of soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle.

The County thereafter advised ACORN that it will enforce section 1209.090 against ACORN solicitors who go out into the roadway to solicit contributions from drivers, and stopped issuing permits to ACORN. There was testimony at the trial that the County's purposes in enacting section 1209.090 were to promote pedestrian and motorist safety; and that the County's interest in traffic efficiency was also threatened by the "toll roads."

The evidence at trial consisted primarily of testimony about the dangers of in-the-roadway solicitation generally, in-the-roadway solicitation as practiced by ACORN, and ideal in-the-roadway solicitation. St. Louis County's experts all agreed that in-the-roadway solicitation generally is dangerous. ACORN's own expert testified that toll roads are dangerous unless regulated by an extensive set of rules. St. Louis County even produced testimony by a volunteer for another organization who had been hit by a car and seriously injured while collecting charitable contributions in the roadway. St. Louis County also introduced a videotape of an actual ACORN "toll road," in which according to ACORN's own expert, "ACORN people were violating practically every tenet that I have shown here in terms of safety," and delaying traffic after the light changed sixteen percent of the time. The district court found that "[w]ithout doubt, the tape demonstrates that there is a significant safety concern linked with solicitation. It showed solicitors darting in between and around the cars, front and back, and from lane to lane. Occasionally, some of the individuals even remained in the street soliciting after the light had turned green." At 751.

The only area of possible conflict in the testimony was whether in-the-roadway solicitation could ever be done safely and without impairing traffic efficiency. St. Louis County's experts testified that they knew of no technique that would make on-the-roadway solicitation safe. However, ACORN introduced the testimony of Mr. Paul Box, a traffic engineering consultant, who said that by the use of his eight point plan, ² in-the-roadway solicitation could be done at "very little" risk to pedestrians, and with "no significant adverse affect [sic] on the flow of traffic."

St. Louis County's expert Robert Reeder specifically addressed the Box plan and stated that it would improve the safety of the solicitation, but that on-the-roadway solicitation would still not be a safe practice. St. Louis County's Traffic Planning Supervisor, Joseph Passanise, also stated that in-the-roadway solicitation subject to the eight restrictions still would not be safe.

The parties stipulated that section 1209.090 does not forbid solicitors from soliciting drivers as long as they stand off the roadway--on the curb, median or shoulder of the road. Therefore, there is no ban on soliciting drivers--only on standing in the roadway to do it.

II.

The right to solicit contributions to a charitable or political cause is protected by the first amendment. Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 633, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980). St. Louis County, as the party seeking to limit behavior protected by the first amendment, bears the burden of justifying its regulation. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986); ACORN v. City of Phoenix, 798 F.2d 1260, 1263 (9th Cir.1986). In a public forum, such as the streets, time, place and manner restrictions on the exercise of first amendment rights will be permitted if they "are justified without reference to the content of the regulated speech ... are narrowly tailored to serve a significant governmental interest, and ... they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). In this case, the government interest in safety and traffic efficiency is "significant"; the restriction is clearly neutral as to the content of the regulated speech; and ACORN makes no argument that ample alternative avenues of communication do not exist. See Frisby v. Schultz, 487 U.S. 474, 482-85, 108 S.Ct. 2495, 2500-02, 101 L.Ed.2d 420 (1988).

The only issue that remained for consideration by the district court, and that this court must address, is whether the restriction is narrowly tailored to serve a significant governmental interest. This test governs the intrusiveness of governmental regulation in two ways. First, it governs the extent to which the regulation can have the incidental effect of burdening behavior that does not threaten the governmental interest in question.

A regulation must not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989) (emphasis added). On the other hand, the validity of the regulation is judged by its general effect, not whether enforcement in a particular case is necessary to protect the important governmental interest. United States v. Albertini, 472 U.S. 675, 688-89, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985). In Ward, New York City required groups performing in its park to use the city's sound system. One of the reasons for the requirement was that the city needed to make sure that the sound amplification was sufficient to reach all listeners within the defined concert ground. 109 S.Ct. at 2757. In upholding the city's requirement, the Supreme Court stated, "No doubt this concern [about inadequate sound] is not applicable to respondent's concerts, which apparently were characterized by more-than-adequate sound amplification. But that fact is beside the point, for the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case." Id. at 2759. Accord, Carew-Reid v. Metropolitan Transp. Auth., 903 F.2d 914, 918 (2d Cir.1990).

Second, the "narrowly tailored" requirement governs the degree of intrusion the government can impose on behavior that does threaten its interests to some degree. To justify any intrusion at all there must be a threshold showing that the factual situation demonstrates a real need for the government to act to protect its interest. In United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), a ban on carrying signs on the sidewalks surrounding the Supreme Court building was held invalid because the government's interests in protecting persons and property on the grounds and protecting the Court's image as being free from political influence were not sufficiently threatened by the banned activity to warrant governmental action. Id. at 182-83, 103 S.Ct. at 1709-10. The danger the regulation protects against...