Court Upholds First Amendment Rights in Oklahoma Right-of-Way Case

From LP News | Vol. 50, Issue 3 | Quarter 3, 2020

By Chris Powell • Oklahoma LP

Tina Kelly campaigns in an Oklahoma City median on June 26th, 2018 in violation of city ordinance. That ordinance was struck down by the 10th Circuit on Aug. 31, 2020. (Photo courtesy of Chris Powell)

On Aug. 31, the 10th Circuit Court of Appeals ruled in favor of the plaintiffs in McCraw et al v. City of Oklahoma City, upholding free speech by overturning a city ordinance banning people from standing in public roadway medians. Plaintiffs included the Oklahoma Libertarian Party, specifically representing the right to political speech in public thoroughfare right-of-ways.

Originally proposed in an effort to restrict the rights of panhandlers, the ordinance was quickly amended to disguise that purpose by cloaking it in manufactured public safety concerns. Former OKLP Chair Tina Kelly, a witness in the district court trial, testified to the use of medians for political activity including petitioning for ballot access and campaigning for candidates. Although the federal district court upheld the ordinance, on appeal, the 10th Circuit noted that the city could not produce any data evidencing that being in medians is dangerous and, comparing the work of OKC Beautiful volunteers to what the city sought to prohibit, saying, “[s]urely if it is safe for volunteers to be on the medians long enough to beautify them, it is also safe for plaintiffs to be on the medians for similar periods of time.”

The victory is reminiscent of a 1984 case when the district court overturned trespassing charges by the city against Annie Wampler, Neil Wright and D. Frank Robinson for petitioning for ballot access on public property outside a gun show at the state fairgrounds.