Albert Clatterbuck v. City of Charlottesville , 708 F.3d 549 ( 2013 )

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. § 1983against 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.