                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-2389


ROBERT S. REYNOLDS,

                Plaintiff - Appellant,

           v.

DOUGLAS A. MIDDLETON,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:12-cv-00779-JAG)


Argued:   October 28, 2014              Decided:   February 24, 2015


Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Diaz and Senior Judge Davis
joined.


ARGUED: Brian Timothy Burgess, GOODWIN PROCTER LLP, Washington,
D.C., for Appellant. Andrew Ramsey Newby, OFFICE OF THE COUNTY
ATTORNEY, Henrico, Virginia, for Appellee. ON BRIEF: William M.
Jay, Washington, D.C., Kevin P. Martin, GOODWIN PROCTER LLP,
Boston, Massachusetts, for Appellant. Joseph P. Rapisarda, Jr.,
Lee Ann Anderson, COUNTY OF HENRICO, Henrico, Virginia, for
Appellee.
TRAXLER, Chief Judge:

      Robert      Reynolds      is    homeless       and     supports        himself       by

soliciting      donations      in    Henrico       County,      Virginia.       Reynolds

brought    an    action       raising   First       Amendment          challenges     to    a

Henrico    County      ordinance      that       prohibits       solicitation       within

County roadways.         The district court granted summary judgment in

favor of the County, and Reynolds appeals.                       For the reasons that

follow, we vacate the grant of summary judgment and remand for

further proceedings.

                                            I.

      Prior      to   2012,     Henrico      County       had     an    ordinance      that

prohibited       those    “standing”        in     County       roadways,     which        the

ordinance     defined     to    include      the    medians,          from   distributing

handbills, soliciting contributions, or selling merchandise to

car drivers or passengers.              Roadway solicitors got around the

ordinance by soliciting funds while sitting in the medians.

      Police Chief Douglas Middleton, the named defendant, urged

the Henrico County Board of Supervisors to consider amending the

ordinance to prohibit all roadway solicitation while standing or

sitting.        At a public hearing on the issue, Middleton stated

that the number of people soliciting while sitting in medians

had   increased       “[i]n    the   past    few    years       and    particularly        the

current year,” J.A. 63, and that this increase had led to an

increased       number    of    complaints         from     citizens.          Middleton

                                             2
explained    that     he    believed       soliciting          from    the     median     was

dangerous to the solicitors and to drivers and that prohibiting

median-solicitation         would     make       the    roads     safer.          Middleton

stated that “as chief of police I cannot ignore the increasingly

present danger that the current activities are creating, [and] I

would rather proceed to avoid a tragedy, and I am responding to

that in a proactive manner as opposed to being reactive.”                                 J.A.

64.

      Middleton did not consult traffic-safety or other experts

before   seeking     the    changes     to       the    ordinance,       but      based   his

proposal on his opinion that it is unsafe to solicit “in the

highway,”     an     opinion        that     he        based     on      his      “personal

observations,       the    credible     reports         of     other     law-enforcement

officers and citizens, and [his] experience as a law-enforcement

officer for over 40 years.”                J.A. 60.          Middleton did not give

any specific examples of accidents or other problems caused by

median-solicitors          in   his    deposition            testimony       or     in     his

statements at the public hearing.

      The County Attorney’s Office prepared a report addressing

solicitation on County highways.                  The report stated that there

had   been   an    “increased       presence       of    [roadway        solicitors]        in

County   highways,         especially        in        the     medians       of    numerous

intersections in the West End of the County,” J.A. 29, and that

“[n]umerous complaints have been received from County citizens

                                             3
over   the    past    several   months,”       J.A.     30.     According   to    the

report,      police    received     “97       calls     for    service   concerning

panhandling” in 2011 and received 93 such calls in the first 8

months of 2012.        J.A. 31.     There is no other empirical evidence

in   the   record     of   actual   problems          caused   by   panhandling    or

soliciting from medians.

       The Board of Supervisors agreed with Middleton and voted to

amend the ordinance.         The amended version of the ordinance (the

“Amended Ordinance”) provides as follows:


       Sec.   22–195.  Distributing  handbills,  soliciting
       contributions or selling merchandise or services in
       highway.

       (a) It shall be unlawful for any person while in the
       highway to:

            (1) Distribute handbills, leaflets, bulletins,
       literature, advertisements or similar material to the
       drivers of motor vehicles or passengers therein on
       highways located within the county.

            (2) Solicit contributions of any nature from the
       drivers of motor vehicles or passengers therein on
       highways located within the county.

            (3) Sell or attempt to sell merchandise or
       services  to   the  drivers  of  motor  vehicles  or
       passengers therein on highways located within in the
       county.

       (b) For purposes of this section, the term “highway”
       means the entire width of a road or street that is
       improved, designed, or ordinarily used for vehicular
       travel and the shoulder, the median, and the area
       between the travel lane and the back of the curb.



                                          4
J.A.     16.      Given    the     definition        of   “highway,”       the    Amended

Ordinance prohibits a homeless person from sitting (or standing)

in a median with a sign asking for donations or offering to work

in   exchange     for   food,     but     it    permits,   for    example,       campaign

workers with signs urging drivers to vote for their candidate to

gather     in    the    medians.         Solicitation       and    other     activities

prohibited on the highways and medians remain permissible on

County sidewalks, which are not included in the definition of

“highway.”

         Acting pro se, Reynolds brought this action challenging the

Amended Ordinance on First Amendment grounds.                      Reynolds and the

County cross-moved for summary judgment.                         The district court

denied Reynolds’ motion and granted the County’s.                            The court

recognized       that    streets       and     medians    are    traditional       public

forums, but the court nonetheless upheld the Amended Ordinance

as   a    content-neutral        and    narrowly      tailored    time,     place,      and

manner restriction on speech.                This appeal followed.

                                             II.

         There is no question that panhandling and solicitation of

charitable contributions are protected speech.                      See Clatterbuck

v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013).

There is likewise no question that public streets and medians

qualify     as   “traditional          public      forum[s].”     Id.   at       555;   see

Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en

                                               5
banc) (“Median strips, like sidewalks, are integral parts of the

public    thoroughfares           that   constitute        the    traditional      public

fora.”).

      The government’s power to regulate speech in a traditional

public forum is “limited, though not foreclosed.”                           Clatterbuck,

708   F.3d     at    555.        Content-neutral         time,    place,     and   manner

regulations of speech in traditional public forums are subject

to intermediate scrutiny – that is, the restrictions must be

“narrowly tailored to serve a significant government interest

and   leave    open    ample       alternative       channels     of   communication.”

Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert.

denied, 135 S. Ct. 183 (2014).                    A content-neutral regulation is

narrowly      tailored      if    it   does    not      “burden   substantially      more

speech than is necessary to further the government’s legitimate

interests.”         McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)

(internal quotation marks omitted).                     To be valid, the regulation

“need not be the least restrictive or least intrusive means of

serving the government’s interests.                      But the government still

may not regulate expression in such a manner that a substantial

portion of the burden on speech does not serve to advance its

goals.”      Id. (internal quotation marks omitted).

      Reynolds,       now        represented       by    counsel,      challenges    the

district      court’s       decision     upholding         the    Amended     Ordinance.

Reynolds argues that the County bears the burden of proof and

                                              6
that the County’s evidence was insufficient to establish that

the Amended Ordinance is narrowly tailored or that it leaves

open ample alternative channels of communication. 1

                                            III.

       We begin with the burden of proof.                    “[W]here a plaintiff

claims     suppression        of   speech    under    the   First   Amendment,     the

plaintiff bears the initial burden of proving that speech was

restricted by the governmental action in question.”                       Lim v. City

of Long Beach, 217 F.3d 1050, 1054 n.4 (9th Cir. 2000); see

American Legion Post 7 v. City of Durham, 239 F.3d 601, 606 (4th

Cir.    2001)    (threshold        determination      triggering     application    of

First      Amendment     scrutiny       is       whether    challenged     regulation

burdens speech).         After the plaintiff makes his initial showing,

the     burden    then    falls       on     the     government     to    prove    the

constitutionality of the speech restriction.                      See McCullen, 134

S. Ct. at 2540 (“To meet the requirement of narrow tailoring,

the    government      must    demonstrate         [that   the   speech   restriction

       1
       Reynolds expressly does not challenge the district court’s
determination that the Amended Ordinance is content- neutral,
and we therefore do not consider that issue.    We note that the
Supreme Court recently heard argument in a case involving the
content-neutrality of a town ordinance regulating temporary
signs.   See Reed v. Town of Gilbert, S. Ct. Docket No. 13-502
(argued Jan. 12, 2015).      In the event the Supreme Court’s
decision in Reed undermines the district court’s analysis of the
neutrality issue, the district court on remand will be free to
reconsider the issue.    See, e.g., TFWS, Inc. v. Franchot, 572
F.3d 186, 191 (4th Cir. 2009) (noting exception to the law-of-
the-case doctrine for change in controlling legal authority).


                                             7
meets the relevant requirements].” (emphasis added)); see also

Edenfield    v.    Fane,   507   U.S.   761,    770    (1993)   (“It    is    well

established that the party seeking to uphold a restriction on

commercial     speech      carries   the    burden     of     justifying      it.”

(internal quotation marks and alteration omitted)).

     Here, Reynolds made the necessary threshold showing.                      As

discussed, solicitation of charitable contributions is speech,

and Reynolds alleged in his verified complaint that the Amended

Ordinance inhibits his ability to collect donations by requiring

him to move to locations where it is more difficult for drivers

to make contributions. 2         See Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991) (verified complaint “is the equivalent of an

opposing     affidavit     for   summary    judgment    purposes,      when   the

allegations contained therein are based on personal knowledge”).

The County was therefore obligated to prove that the Amended

Ordinance     is    narrowly     tailored      to   further     a   significant

government interest and that it leaves open ample alternative

channels of communication.

     The more difficult issue -- and the issue on which this

appeal turns -- is determining precisely what the County must

present in order to carry its burden of proof.                      The County

     2
       As Reynolds explained in his complaint, “forcing him out
of the roadway results in the drivers[’] inability to hand him
money because they cannot reach across the passenger seat and
usually several more feet into Reynolds’ hand.” J.A. 9.


                                        8
contends that intermediate scrutiny “does not always require an

evidentiary showing,” Brief of Respondent at 20, and that it is

entitled to rely on common sense and logic, as well case law and

the    experience         of     other    jurisdictions,         when    defending      the

Amended Ordinance.

       The       County’s      formulation    certainly     finds       support   in    our

precedent.         We have not required an evidentiary record to uphold

a speech regulation that is materially indistinguishable from

one that has been found constitutional by this court or the

Supreme Court.           See Wag More Dogs, LLC v. Cozart, 680 F.3d 359,

365 n.3 (4th Cir. 2012) (“[C]onsistent with over thirty years of

case       law   from    the    Supreme   Court     and    our   court,    [the   County

defendant]         has    established        that   the    Sign     Ordinance     passes

constitutional muster under the rubric of intermediate scrutiny.

It need not reinvent the wheel by coming forward with voluminous

evidence         justifying      a   regulation     of    the    type   that   has     been

upheld several times over.”). 3                Likewise, we generally have not


       3
       Unlike the sign and billboard regulation in Wag More Dogs,
however, the Amended Ordinance is not one of a type that has
consistently been found constitutional. Courts have struck down
some solicitation bans and upheld others, with the outcome
turning on the details and wording of the various regulations
(such as whether the ban applied to medians) as well as the
evidentiary record developed by the parties. See, e.g., Comite
de Jornaleros de Redondo Beach v. City of Redondo Beach, 657
F.3d 936, 949 (9th Cir. 2011) (en banc) (striking down ordinance
banning solicitation of employment or contributions from all
city streets and medians in part because the City introduced
(Continued)
                                              9
required       the    government      to     present       evidence        to   show   the

existence of a significant governmental interest; common sense

and the holdings of prior cases have been found sufficient to

establish, for example, that the government has a significant

interest in public safety.                See Ross, 746 F.3d at 555; American

Legion Post 7, 239 F.3d at 609; cf. United States v. Chapman,

666 F.3d 220, 226-27 (4th Cir. 2012) (recognizing that “common

sense and case law” can establish the existence of governmental

interest     in      Second      Amendment        case   subject      to    intermediate

scrutiny).

       As to the other narrow-tailoring requirements, our cases

have   not     been     entirely    clear    about       what   the   government       must

present in order to carry its burden.                    For example, we have held

that intermediate scrutiny “requires the government to produce

evidence     that     a   challenged       regulation      materially       advances     an

important or substantial interest by redressing past harms or

preventing future ones.”             Giovani Carandola, Ltd. v. Bason, 303

F.3d    507,      515     (4th     Cir.    2002)     (emphasis        added;     internal



evidence of traffic problems as to a few major streets and
medians but “offered no evidence to justify extending its
solicitation ban throughout the City in such a sweeping
manner”); Int’l Soc. for Krishna Consciousness of New Orleans,
Inc. v. City of Baton Rouge, 876 F.2d 494, 498 (5th Cir. 1989)
(discussing evidence presented at trial when upholding ordinance
prohibiting solicitation of employment, business or charitable
contributions from occupants of vehicles on street (defined to
include medians)).


                                             10
quotation marks omitted).                We have explained that although the

government need not “present a panoply of empirical evidence in

order to satisfy this standard, it must nonetheless make some

evidentiary showing that the recited harms are real, not merely

conjectural,       and     that    the       [challenged      regulation]           alleviates

these harms in a direct and material way.”                              Ross, 746 F.3d at

556   (emphasis      added;       citations,         internal      quotation        marks     and

alteration     omitted).           While       these       cases   seem       to    insist    on

evidence, we have in some cases nonetheless relied on things

other   than       objective       evidence         when    determining         that    speech

restrictions advanced the government’s asserted interest.                                   See,

e.g., Ross, 746 F.3d at 556 (relying on “appeals to common sense

and   logic”       (internal       quotation         marks    omitted));           Educational

Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 589 (4th

Cir. 2010) (relying on “history, consensus, and common sense”).

      In our view, however, the Supreme Court’s recent decision

in McCullen v. Coakley clarifies what is necessary to carry the

government’s        burden        of    proof       under     intermediate           scrutiny.

McCullen involved a First Amendment challenge to a Massachusetts

buffer-zone statute that prohibited standing on a “public way or

sidewalk     within       35   feet     of    an     entrance      or    driveway”      of     an

abortion clinic.           McCullen, 134 S. Ct. at 2525.                      After a bench

trial   on     stipulated         facts,       the     district         court      upheld    the

statute,     and    the    First       Circuit      affirmed.           The   Supreme       Court

                                               11
applied intermediate scrutiny – the same standard we apply in

this case – and reversed.

      As    to     whether     the     statute        furthered       a     significant

governmental      interest,     the    Court      referred     to   prior       case    law

recognizing       the    legitimacy    of     the    government’s         interests      in

public safety and the unobstructed use of roadways and sidewalks

and then stated, without reference to any evidence presented at

trial, that “[t]he buffer zones clearly serve these interests.”

Id. at 2535.           The Court nonetheless held that the statute was

not   narrowly     tailored     because     it      burdened   substantially            more

speech than necessary to serve those interests.                            In rejecting

the    Commonwealth’s         narrow-tailoring           arguments,         the        Court

repeatedly grounded its conclusions on the absence of evidence

supporting       the     Commonwealth’s       arguments.        See       id.     at    2539

(“Respondents point us to no evidence that individuals regularly

gather     at    other    clinics,    or    at    other    times      in    Boston,      in

sufficiently large groups to obstruct access.”); id. (rejecting

State’s argument that enforcing existing laws would not prevent

the   safety     and     congestion    problems       addressed     by      the   statute

because the Commonwealth did not identify “a single prosecution

brought under those laws within at least the last 17 years” and

therefore “has not shown that it seriously undertook to address

the problem with less intrusive tools readily available to it”);

id.   at   2540    (“Given     the    vital      First    Amendment        interests     at

                                           12
stake, it is not enough for Massachusetts simply to say that

other approaches have not worked.”).

      We     draw     several     lessons     from    the    Court’s        decision    in

McCullen.      First, the Court’s discussion of whether the statute

furthered an important governmental interest confirms that the

existence     of     a     governmental     interest    may     be     established      by

reference to case law.               See id. at 2535.          Second, the Court’s

flat declaration that “[t]he buffer zones clearly serve these

interests,” id., indicates that objective evidence is not always

required      to     show     that    a    speech     restriction       furthers       the

government’s interests. 4            Finally, the Court’s rejection of the

Commonwealth’s        narrow-tailoring        arguments      makes     it    clear     that

intermediate        scrutiny      does    indeed     require    the     government      to

present actual evidence supporting its assertion that a speech

restriction         does    not   burden     substantially       more       speech     than

necessary; argument unsupported by the evidence will not suffice

to   carry    the     government’s        burden.     With     these    principles      in



      4
       In McCullen, the relationship between the government’s
asserted interest and the challenged statute was obvious -- the
Commonwealth was concerned about congestion around abortion
clinics obstructing traffic and preventing access to the
clinics, and the statute prohibited people from gathering in
roadways   around   abortion clinics.    In   cases  where  the
relationship is not so obvious, we do not believe that McCullen
would relieve the government of its obligation to present
evidence showing that the speech regulation furthers its
asserted interests.


                                            13
mind, we turn now to Reynolds’ substantive challenges to the

Amended Ordinance.

                                      IV.

       Reynolds argues the County failed to prove that the Amended

Ordinance     is     narrowly    tailored      to    serve     a   significant

governmental interest.

                                      A.

       The County contends that the solicitation activities that

the Amended Ordinance prohibits can obstruct traffic and are

dangerous to drivers and solicitors alike, and that the Amended

Ordinance     furthers     the   County’s      interests      in   safety   and

unobstructed use of its highways.              Reynolds does not dispute

that    the   County’s     asserted      interests      are   legitimate    and

substantial.       See McCullen, 134 S. Ct. at 2535 (recognizing “the

legitimacy    of    the   government’s      interests    in   ensuring   public

safety and order [and] promoting the free flow of traffic on

streets” (internal quotation marks omitted)); Brown v. Town of

Cary, 706 F.3d 294, 305 (4th Cir. 2013) (“It is beyond dispute

that the Town’s stated interests in promoting aesthetics and

traffic safety are substantial.”).             Instead, Reynolds contends

that the County’s evidence was insufficient to establish that

the roadway-solicitation prohibited by the Amended Ordinance is

dangerous or that the Amended Ordinance actually furthers the

County’s asserted interests.       We disagree.

                                      14
       Under     intermediate       scrutiny,       the   County        is    required    to

demonstrate that the Amended Ordinance “materially advances an

important or substantial interest by redressing past harms or

preventing       future    ones.”        Ross,      746   F.3d     at    556       (internal

quotation marks omitted).               Chief Middleton testified about the

increasing        number    of     people      soliciting        contributions          from

intersections, “many” of which are very busy, J.A. 102, and he

described potential dangers associated with that activity, see

J.A. 105 (noting that roadway solicitors might “misjudge the

traffic and step out in front of a car” and that an inattentive

driver might “run up onto the curb”).                     Even without evidence of

injuries or accidents involving roadway solicitors, we believe

the County’s evidence, particularly when it is considered along

with a healthy dose of common sense, is sufficient to establish

that roadway solicitation is generally dangerous.                            See Ross, 746

F.3d   at   556      (explaining     that     the   government      “is       entitled    to

advance its interests by arguments based on appeals to common

sense and logic” (internal quotation marks omitted)).

       And once we accept that roadway solicitation is dangerous,

then   it   is      apparent     that   the    Amended     Ordinance         furthers    the

County’s safety interests.              Indeed, we believe it is as obvious

that    the      Amended       Ordinance       furthers      the    County’s          safety

interests      as     it   was    obvious      that    the   statute          in   McCullen

furthered        Massachusetts’         safety        interests,        as     both     move

                                              15
pedestrians out of roadways and away from traffic.                        While the

record in this case does not establish how many people solicit

from the roadways or how many use the roadways for purposes

permitted    by   the    Amended    Ordinance,        it   does   establish       that

roadway solicitors had increased to a number sufficient to worry

a    law-enforcement     officer    with       40   years’   experience        and    to

prompt      hundreds     of    citizen         complaints.             Under     these

circumstances, common sense and logic compel the conclusion that

by     removing   solicitors       from    County      roadways,       the     Amended

Ordinance reduces the number of people engaging in a dangerous

activity and thus furthers the County’s safety interest in a

direct and material way.

                                          B.

       In   addition     to   furthering        a    significant       governmental

interest,     a   narrowly    tailored         regulation    “must      not     burden

substantially     more    speech    than       is   necessary     to    further      the

government’s legitimate interests.”                  McCullen, 134 S. Ct. at

2535     (internal     quotation    marks       omitted).         As    noted,       the

regulation need not be the least restrictive means available,

“[b]ut the government still may not regulate expression in such

a manner that a substantial portion of the burden on speech does

not serve to advance its goals.”               Id. (internal quotation marks

omitted).



                                          16
       Reynolds contends that if the County has established any

safety interest at all, that interest is limited to particularly

busy     intersections,           where       Chief     Middleton’s          concerns     were

focused.         See J.A. 101 (“I think any time you have individuals

in     an    intersection,         particularly         busy       intersections,         that

there’s a public safety concern.”); J.A. 102 (“[W]ith traffic as

busy as it is in many of these intersections, and the volume

that was there, I was as concerned for the individuals that were

soliciting as I was for the drivers.”).                           Reynolds thus argues

that the Amended Ordinance burdens more speech than necessary

because it bans solicitation not just on the busiest or most

dangerous         roads   and     intersections,         but      on   all    roadways       and

medians in the County, without regard to whether solicitation

could       be   safely       conducted       there.        See   Weinberg      v.    City   of

Chicago,         310   F.3d    1029,     1040    (7th   Cir.      2002)      (“The   concerns

behind . . . the ordinance were to alleviate sidewalk congestion

[around the United Center]. . . . [W]e cannot see how this can

justify a restriction which prevents a peddler from selling his

wares       in    large       parking     lots,      less    congested        walkways,      or

sidewalks in less proximity to the United Center.”).

       Reynolds also contends that the Amended Ordinance burdens

more speech than necessary because the County has other, less

restrictive means available to further its asserted interest.

According         to   Reynolds,        the    County    could     achieve      its     safety

                                                17
interest by enforcing existing traffic laws -- such as those

governing      jaywalking,     obstructing          traffic,     loitering,            and    the

like    --    against   any    roadway      solicitors         who    in   fact       obstruct

traffic or otherwise cause problems.                         The County presented no

evidence demonstrating why these alternatives would not serve

its safety interest as effectively as the Amended Ordinance, and

Reynolds       therefore     argues     that     the       district    court          erred    in

finding the Amended Ordinance narrowly tailored.

       Preliminarily, we note that the Amended Ordinance burdens a

wide range of protected speech.                     See Watchtower Bible & Tract

Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 165

(2002)       (explaining     that    courts      must      consider    “the       amount       of

speech       covered    by    the    ordinance         and    whether       there       is     an

appropriate       balance      between        the      affected       speech          and     the

governmental interests that the ordinance purports to serve”).

The Amended Ordinance prohibits all forms of leafletting, which

is one of the most important forms of political speech, see

McCullen, 134 S. Ct. at 2536 (“[H]anding out leaflets in the

advocacy of a politically controversial viewpoint is the essence

of First Amendment expression; no form of speech is entitled to

greater       constitutional        protection.”        (internal      quotation            marks

and    alteration      omitted)),      as   well      as     soliciting         any    kind    of

contribution,       whether     political        or    charitable,         or    selling       or

attempting to sell goods or services.                         All of this speech is

                                            18
constitutionally protected, and it is all prohibited.                           Indeed,

the only thing the Amended Ordinance prohibits is speech; no

portion of it is addressed to pure conduct, such as blocking

traffic.

       Despite the broad swath of speech prohibited by the Amended

Ordinance, the County insists the Amended Ordinance is narrowly

tailored because it prohibits only the most dangerous kind of

roadway      speech     –     “transactional”          speech    that    “necessarily

invites      physical       interaction     between       pedestrians     and     motor

vehicles.”      Brief of Respondent at 34.                The County thus asserts

that   the    Amended       Ordinance     does   not    burden    more   speech    than

necessary     “because        it   only    eliminates       the    precise      problem

identified      by      the     County      –    the      disruption      caused     by

transactional speech in the middle of the highway.”                      Id.    In the

County’s view, the dangers of roadway solicitation are the same

on busy roads and quiet back roads.                       Because the danger is

present on all roads, the County contends that it is appropriate

for the Amended Ordinance to apply to all county roads.

       While the County’s arguments are not without some appeal,

they are essentially the same arguments made in McCullen, and

they fail here for the same reason they failed in McCullen –

lack of evidentiary support.                The Amended Ordinance applies to

all County roads, regardless of location or traffic volume, and

includes all medians, even wide medians and those beside traffic

                                           19
lights      and    stop     signs.         The       Ordinance            thus    prohibits         all

roadside       leafletting         and      solicitation,                  even        where       those

activities        would    not     be     dangerous.                The    County’s       evidence,

however,       established,          at     most,          a        problem        with        roadway

solicitation        at    busy     intersections           in        the    west       end     of   the

county.      Given the absence of evidence of a county-wide problem,

the   county-wide         sweep    of     the    Amended            Ordinance          burdens      more

speech than necessary, just as the statute in McCullen -- a

statewide statute aimed at a problem in one location -- burdened

more speech than necessary.                     See McCullen, 134 S. Ct. at 2539

(“Respondents point us to no evidence that individuals regularly

gather    at      other    clinics,        or    at    other          times       in    Boston,       in

sufficiently large groups to obstruct access.                                     For a problem

shown to arise only once a week in one city at one clinic,

creating       35–foot      buffer       zones       at    every           clinic       across      the

Commonwealth is hardly a narrowly tailored solution.”).

      The    County       also     asserts       that      the        Amended       Ordinance         is

narrowly tailored because other, less speech-restrictive methods

–   specifically,         the    prior     versions            of    the    Ordinance          –    were

ineffective        to    control     the    problem.                As     to    the    other       laws

identified by Reynolds, the County argues those laws “are no

substitute        for     the    direct     fit       of       the       [Amended]       Ordinance.

Solicitors are not loitering, and those camped out in medians



                                                20
are not jaywalking, and yet they may still cause the disruption

identified by the County.”             Brief of Respondent at 42.

      As the Court explained in McCullen, however, the burden of

proving narrow tailoring requires the County to prove that it

actually tried other methods to address the problem.                         “Given the

vital First Amendment interests at stake, it is not enough for

[the government] simply to say that other approaches have not

worked.”    McCullen, 134 S. Ct. at 2540.                  Instead, the government

must “show[] that it seriously undertook to address the problem

with less intrusive tools readily available to it,” id. at 2539

(emphasis added), and must “demonstrate that [such] alternative

measures . . . would fail to achieve the government’s interests,

not   simply    that    the     chosen     route      is   easier,”      id.    at     2540

(emphasis added).         In this case, the County simply presented no

evidence    showing     that      it    ever    tried      to    use   the     available

alternatives to address its safety concerns.                      That is, there is

no evidence that the County ever tried to improve safety by

prosecuting      any    roadway        solicitors      who      actually     obstructed

traffic, or that it ever even considered prohibiting roadway

solicitation only at those locations where it could not be done

safely.     Without      such     evidence,     the     County    cannot       carry   its

burden of demonstrating that the Amended Ordinance is narrowly

tailored.       See    id.   at     2539   (rejecting      State’s     argument        that

enforcing      existing      laws      would    not    prevent     the     safety      and

                                           21
congestion problems addressed by the buffer-zone law because the

State did not identify “a single prosecution brought under those

laws within at least the last 17 years”).                     The district court

therefore erred by finding County’s evidence sufficient to show

narrow tailoring.

                                          V.

      Although     we     have   concluded      that   the    County’s     evidence

failed   to    establish     that   the    Amended     Ordinance     was   narrowly

tailored, we believe the proper course is to vacate and remand.

Our analysis in this case was driven by the Supreme Court’s

decision      in   McCullen,     which    was    issued      after   the   district

court’s ruling in this case.               As we have explained, McCullen

clarified the law governing the evidentiary showing required of

a governmental entity seeking to uphold a speech restriction

under intermediate scrutiny.              Because the parties did not have

McCullen’s     guidance     at   the     time   they   prepared      their   cross-

motions for summary judgment, we believe the County should have

an   opportunity     to    gather   and    present     evidence      sufficient   to

satisfy McCullen’s standard.             Accordingly, we hereby vacate the

district court’s order granting summary judgment to the County




                                          22
and   remand   for   further   factual   development   and   additional

proceedings as may be required. 5

                                                 VACATED AND REMANDED




      5
       Because the evidence does not establish that the Amended
Ordinance is narrowly tailored, we are not required to consider
whether the Ordinance leaves open ample alternate channels of
communication.   See McCullen v. Coakley, 134 S. Ct. 2518, 2540
n.9 (2014). Nonetheless, because the issue will likely arise on
remand, we briefly address it.

     The “available alternatives need not be the speaker’s first
or best choice or provide the same audience or impact for the
speech.”   Ross v. Early, 746 F.3d 546, 559 (4th Cir.), cert.
denied, 135 S. Ct. 183 (2014).     Nonetheless, the alternatives
must be adequate.     See Members of City Council of L.A. v.
Taxpayers for Vincent, 466 U.S. 789, 812 (1984) (“While the
First Amendment does not guarantee the right to employ every
conceivable method of communication at all times and in all
places, a restriction on expressive activity may be invalid if
the remaining modes of communication are inadequate.” (citation
omitted)). The district court noted that the Amended Ordinance
permits leafletting and solicitation on sidewalks and along the
side of the street and concluded that these alternatives were
sufficient as a matter of law.     As indicated in his verified
complaint, however, Reynolds’ target audience is drivers, and
medians offer the most effective way to reach drivers.        As
Reynolds explains, “medians – which are isolated from other
pedestrians, parked cars, and other obstacles that limit
visibility, and which can be seen by vehicles in two-way traffic
– offer unique benefits to speakers seeking to disseminate their
views.”   Brief of Appellant at 50.   While there is no question
that alternative channels of communication exist, Reynolds’
evidence raises a question of fact about the adequacy of those
alternatives.   See Weinberg v. City of Chicago, 310 F.3d 1029,
1041 (7th Cir. 2002) (“[T]he simple fact that Weinberg is
permitted to communicate his message elsewhere does not end our
analysis if the intended message is rendered useless or is
seriously burdened.”).   Because there are genuine questions of
material fact, summary judgment was inappropriate.


                                  23
