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PORTLAND, Maine (NEWS CENTER) -- A federal judge heard arguments today in the ACLU's case against the city of Portland over its ordinance banning people from standing in medians.

The city argues the ordinance protects public safety. The ACLU says it restricts free speech. And the judge in the case raised a point late in the afternoon that neither side had thought of.

The ordinance was enacted in July, the city says, to eliminate a threat to public safety, after there was an explosion of panhandling in medians. The ACLU and Goodwin Procter filed suit on behalf of two political protestors, Michael Cutting and Wells Staley-Mays, who say the ordinance infringes on on their rights to protest the government. The suit also names a homeless woman as plaintiff, Alison Prior, who says she can no longer make enough money panhandling in Portland because medians are where the money is.

But as both sides made their arguments Tuesday, it was the judge that raised a question about the ordinance that neither side had argued before. Judge George Singal questioned the validity of the ordinance on the basis that it might ban some kinds of speech while protecting others. Portland Police Chief Michael Sauschuck testified officers have no intention of enforcing the ordinance when it comes to banging campaign signs into the ground at medians. State law protects those signs, and Judge Singal also questioned whether state law also protects people holding political signs in the medians.

The city argues this issue is just a distraction, that there is a real public safety concern on medians and the intent of this law was to keep people from lingering in the median, not engaging in activities that only take a second.

Trish McAllister, the city's attorney said, "I just didn't think it was all that relevant to the conduct that the city's trying to regulate for safety purposes."

The ACLU, meanwhile, had been contending that telling people they can't spread their messages while standing in a median unfairly restricts their free speech. Now, they also plan to argue that campaign sign exception means the law discriminates against certain kinds of speech.

Zach Heiden, an attorney with the ACLU of Maine said, "I just didn't think it was all that relevant to the conduct that the city's trying to regulate for safety purposes."

In about four weeks from now, both sides have to submit written arguments to the judge, who then can take at least another two weeks to decide the case.

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