dissenting:
I agree with the majority opinion that the City of Montgomery’s policy does regulate expressive activity in a public forum and therefore must pass the time, place and manner test. However, I disagree with the majority’s conclusion that the City’s policy passes the narrow-tailoring prong of the time, place and manner test. Thus, I respectfully dissent.
As correctly stated by the majority, the crucial question is whether the City’s regulation “burdenfs] substantially more speech than is necessary to further the government’s legitimate interests.” Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989). In other words, “Government 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. The City *1554has the burden of proving that its policy is narrowly tailored to serve a significant governmental interest. Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989). To apply this standard, it is necessary to identify precisely the interests asserted by the City and the nature of the ban itself. As justification for its regulation, the City asserts a single interest — i.e., avoiding partial blockage of or interference with pedestrian traffic.1 Both the majority opinion, supra at 1551, and the district court opinion focus on this single interest of the City.
I turn next to the precise nature of the City’s regulation. The nature of the City’s regulation is not disputed: it is a complete ban on any use of tables anywhere on any sidewalk of the City. A crucial fact relating to the nature of the City’s ban is the fact that it applies not only to the concrete walkway upon which pedestrians generally travel, but also to the grassy areas between the street curb and the concrete walkway. The parties so agreed in the district court, and the court accepted same as a finding of fact.2 Indeed, the two instances which triggered this case involved application of the City’s ban to tables the plaintiffs set up on these grassy areas. It is this crucial fact which makes it clear to me that the City’s ban as applied in the instant case burdens substantially more speech than is necessary to further the City’s interest. As noted above, the single interest asserted by the City as justification for the ban is avoiding interference with pedestrian traffic. However, it is clear that there is little or no pedestrian traffic on the grassy areas. The district court implicitly so found; it found that “pedestrians generally travel” on the concrete walkways. 856 F.Supp. at 1554 n. 1. Moreover, the district court explicitly found that the City had adduced no evidence at all of actual interference with pedestrian traffic. Indeed, the district court found that “the City’s contention ... [regarding] the potential for pedestrian obstruction ... was totally unsubstantiated.” Id. at 1559. Finally, it is obvious as a matter of common sense and common experience that the City does not expect pedestrian traffic on the grassy areas, other than an occasional crossing.
In sum, the City simply has not met its burden of proving that its ban is narrowly tailored to serve its interest in avoiding interference with pedestrian traffic. In the language of Ward, the City has “burden[ed] substantially more speech than is necessary to further the ... [City’s] legitimate interests.” 491 U.S. at 799, 109 S.Ct. at 2758.
United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), provides strong support for my position. There, the Court addressed a statute banning the “display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement” in the Supreme Court building and on its grounds. 461 U.S. at 172-73, 103 S.Ct. at 1704-05. The Court concluded that the statute, “which totally ban[ned] the specified communicative activity on the public sidewalks around the Court grounds,” 461 U.S. at 181, 103 S.Ct. at 1709, could not be justified as a reasonable time, place, and manner restriction because it did not “sufficiently serve those public interests that are urged as its justification.” Id. In support of its conclusion, the Court wrote:
We do not denigrate the necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds, but we do question whether a total ban on carrying a flag, banner, or device on the public sidewalks substantially serves these purposes. There is no suggestion, for example, that appellees’ activities in any way obstructed the sidewalks or access to the building, threatened injury to any person or property, or in any way interfered with the orderly administration of the building or other parts of the grounds.
*1555461 U.S. at 182, 103 S.Ct. at 1709-10. Because it concluded that none of the proffered State interests was sufficiently served by the ban, the Court held that the statute could not constitutionally be applied to the public sidewalks on the perimeter of the Supreme Court grounds. 461 U.S. at 183, 103 S.Ct. at 1710. Just as the ban in Grace could not be applied to the public sidewalks bordering the Court grounds, I would conclude that the City’s ban in this case cannot be applied to the plaintiffs’ expressive activity on the grassy areas. In my judgment, the City’s interest in the instant case is furthered by banning tables on the grassy areas even less than the governmental interests were served by the ban which was disallowed by the Supreme Court in Grace.
The majority opinion takes some comfort from the fact that a number of the Justices of the Supreme Court have indicated in dicta or in dissents that they would approve a complete ban prohibiting newsraeks on city sidewalks. See supra at 1553 (citing dicta in 44 Liquormart, Inc. v. Rhode Island, — U.S. -, - n. 20, 116 S.Ct. 1495, 1513 n. 20, 134 L.Ed.2d 711 (1996),3 and dissents in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 444-46, 113 S.Ct. 1505, 1525, 123 L.Ed.2d 99 (1993) (Chief Justice Rehnquist and Justices White and Thomas, dissenting), and City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 2152, 100 L.Ed.2d 771 (1988) (Justices White, Stevens, and O’Connor, dissenting)). In my disposition of this ease, I can assume arguendo that it would be permissible for a city to adopt a complete ban prohibiting all news-racks from its sidewalks.4 I assume that sustaining such a ban would be based upon a city’s legitimate interests in avoiding interference with pedestrian traffic and/or protecting aesthetic .values, as Justice White’s Plain Dealer dissent suggests. In the instant case, the City of Montgomery has not asserted aesthetics as an interest justifying its action, and thus I need not address the possibility that such an interest might warrant such governmental action.5 With respect to a city’s interest in avoiding interference with pedestrian traffic, I note that the situation addressed in the Plain Dealer and City of Cincinnati dissents presumably involved newsraeks located on the paved portion of the sidewalk which is regularly utilized by pedestrians. In that context, it may well be that a city’s determination of means to avoid interference with pedestrian traffic need not be more discriminating than to decide that there should be no permanent or semi-permanent structures partially blocking paved sidewalks set aside exclusively for pedestrian traffic. In the context of newsraeks on paved sidewalks, there may be no clear and obvious line of demarcation between newsraeks that are likely to obstruct pedestrian traffic and those that are not.6
By contrast, in this case, there is such a clear demarcation. It is clear beyond peradventure that card tables on the grassy areas will not interfere with pedestrian traffic, and *1556that any potential interference is possible only with respect to tables on the concrete walkways where pedestrians are expected to walk. In this case, the City’s ban applies in a broad, discrete, and readily discernible range of instances where the City’s stated interest is simply not furthered.7
In conclusion, it is clear to me that the City’s ban burdens substantially more speech than is necessary to further the City’s stated interest. Two considerations ineluctably point to this. conclusion — i.e., the fact that tables set up on the grassy areas have not and cannot be expected to interfere with pedestrian traffic, and the clear line of demarcation separating the grassy areas where no interference can be expected from the concrete walkways where the pedestrian traffic flows.8 Thus, I would hold that the City’s ban is unconstitutional as applied to the grassy areas between the curb and the concrete walkway.9
ORDER
New revised opinions in the above ease having been filed by the Court, the Petition for Rehearing addressing the original panel opinion has effectively been granted, and the grounds for the Suggestion for Rehearing En Banc have effectively been mooted. Inasmuch as the petitioner failed to prevail as to an affirmance of the district court judgment, the parties are, of course, free to file petitions for rehearing and suggestions for rehearing en bane addressing this decision of the Court, if they be so advised, subject to the applicable time constraints and the rules of procedure.
. The City also asserts that there are certain foreseeable risks to the safety of pedestrians which would arise from interference with pedestrian traffic. However, this interest is merely derivative from the one stated in text.
. After noting the Ci1y ordinance defining a sidewalk, the district court stated: "The parties agree that the City’s ban on placing tables on sidewalks applies to tables placed on the grassy area between the street curb and the concrete walkway. The term 'concrete walkway’ ... refers to the paved region of the sidewalk upon which pedestrians generally travel.” 856 F.Supp. at 1554 n. 1.
. The dicta in the plurality opinion of Justices Stevens, Kennedy, Thomas, and Ginsburg in Li-quormart merely refers to the assumption in City of Cincinnati that governments could prohibit all newsraeks on public sidewalks. Neither the Li-quormart plurality nor the City of Cincinnati majority said even in dicta that such a prohibition was in fact constitutional.
. Justice White's dissent in Plain Dealer contains the only discussion of the rationale which might support the validity of a complete ban prohibiting newsraeks from city sidewalks. The broad concern expressed by Justice White was to keep the sidewalks free for the use of all members of the public, rather than to permit the appropriation of city property for the exclusive use of the newspaper's semi-permanent newsraeks. 486 U.S. at 778-81, 108 S.Ct. at 2155-57: In my judgment, Justice White’s concerns are not implicated in this case. Plaintiffs’ tables are not permanent; plaintiffs merely used card tables, and there was no appropriation of city property for their exclusive use. Quite the contrary, plaintiffs’ tables on grassy areas did not interfere with pedestrian traffic and were wholly consistent with use of the sidewalk by the public for its intended purpose, i.e., pedestrian traffic. In my opinion, plaintiffs' tables are very different from the newsraeks in the Plain Dealer and City of Cincinnati dissents; plaintiffs' use of the public property is more akin to a pedestrian with a wheelbarrow.
. This is still another factor distinguishing the instant case from the case addressed by the dissenting Justices in Plain Dealer and City of Cincinnati.
. The logic of the majority — -"the City need not show that every table placed on the sidewalk would create an unwanted obstruction," supra at 1551 — has considerable force in that context.
. The majority also relies on two Seventh Circuit decisions, International Society for Krishna Consciousness, Inc. v. Rockford, 585 F.2d 263 (7th Cir.1978), and International Caucus of Labor Committees v. City of Chicago, 816 F.2d 337 (7th Cir.1987). I find those two decisions to be weak authority for the City's position in this case. I note preliminarily that the rationale in the two opinions, even taken together, is cursory at best. More importantly, the factual situation in the two cases is easily distinguished. Like the instant case, the Seventh Circuit cases involved a ban on tables; however, both Seventh Circuit cases involved such a ban in the context of municipal airports. The limitations on space and the density of traffic in airports make it clear to me that the airport context is simply not comparable to the sidewalk context generally. The difference between the instant case and the Seventh Circuit decisions is even more pronounced. In this case, the only interest asserted by the City is avoiding interference with pedestrian traffic, and this case involves a ban on tables in the grassy areas where there is little or no pedestrian traffic. Unlike the airport context, there is in this case a clear line of demarcation separating the areas where there is no interference with pedestrian traffic from the areas where there may be such interference.
. In its final footnote, the majority points to the provision of the City Code defining a sidewalk as "[t]hat portion of a street between the curb lines ... and the adjacent property lines, intended for use of pedestrians.” The majority says: "If it is an area that pedestrians do not use, the ban would not apply.” I would have so interpreted the ban. In other words, I would have interpreted the ban not to apply to the grassy areas where there is little or no pedestrian traffic. However, the litigation in this case has proceeded upon the understanding that the City does apply the ban to the grassy areas. 856 F.Supp. at 1554 n. 1. Indeed, the City did so in the instant case. To the extent that the majority suggests that the City "has the same interest in pedestrian traffic,” with respect to grassy areas, I respectfully disagree. The City has the burden of proof, and it adduced no evidence of pedestrian traffic on the grassy areas. The district court implicitly so found. We should not "indulge assumptions that the record — to say nothing of common sense— reveals to be invalid.” 856 F.Supp. at 1560.
.My analysis does not amount to a least-restrictive-means test. The Supreme Court has itself recognized that an examination of whether “there are numerous and obvious less-burdensome alternatives to the restriction [at issue]” does not amount to a least-restrictive-means test. See City of Cincinnati, 507 U.S. at 418 n. 13, 113 S.Ct. at 1510 n. 13. In this case, the line of demarcation between the grassy areas and the paved areas on which pedestrian traffic flows is obvious.
It is obvious to me that the single City interest, i.e., avoiding interference with pedestrian traffic, is simply not served by banning tables on grassy areas where there is little or no such traffic. Thus, under the plain meaning of the Ward language, the City’s ban on tables in the grassy areas burdens substantially more speech than necessary to serve the City’s interest. I respectfully submit that the majority's deference to the City’s poorly adapted means effectively ignores the Ward standard.