A Stitch in Haste

The City of Atlanta has been grappling with a proposed panhandling ban in its business district:

The proposal would make it illegal to beg for money near downtown hotels or tourist sites. On a third offense, beggars could be jailed or fined.

The plan has sparked intense opposition from advocates for the poor and civil rights groups. On the other side are downtown business owners, who say aggressive beggars are keeping people away from the central business district.

Opponents described it as a civil rights issue, because many of the downtown beggars are black.

As someone who lives and works in Manhattan, I'm certainly familiar with the nuisance factor that beggars can create, especially on the subways (where, incidentally, all solicitation is banned, not just panhandling). I'm also perpetually stunned at the aggressiveness of San Francisco's beggars.

Still, the First Amendment is the First Amendment, and as far as I can tell the proposed Atlanta ban would be flagrantly unconstitutional.

It seems fairly obvious that panhandling is symbolic speech entitled to full First Amendment protection (as opposed to, say, being classified as commercial speech, which receives less protection). And it is even more obvious that a panhandling ban, as opposed to a general solicitation ban, is content-based rather than content-neutral (i.e., only one form of speech is proscribed).

In such circumstances the constitutional case law is clear: the ban, if ever enacted, would be subject to strict scrutiny, meaning that the government would be required to show not only that the law was "necessary" to achieve a "compelling" government interest, but also that the ban is the "least restrictive means" available. See Sable Communications v. FCC, 492 U.S. 115 (1989). One federal appeals court has also expressly invalidated prophylactic panhandling and loitering bans — see Loper v. New York City Police Department, 999 F.2d 699 (2nd Cir. 1993); a list of begging-related decisions can be found here.

It seems obvious to me that the Atlanta ban would fail each and every prong of the Sable content-based test. First, it is not clear that beggar-free streets, even in an important central business district, are a "compelling" interest — nice, perhaps, but not "compelling." Ugly, or smelly, or guilty-feeling-creating are not sufficient intrusions on our sensibilities to warrant wholesale removal from an entire area — even a tourist area.

And even if there were a sufficiently "compelling" interest, a law banning all panhandling, even merely sitting quietly in a corner with a cup in your hand, is still not "necessary" to achieving that goal, nor is it the least restrictive means available to achieve that interest. Enforcing existing laws relevant to aggressive panhandling, such as disturbing the peace, public nuisance, harassment, and even assault and battery if warranted, will "keep the beggars in their place," so to speak.

Or, if more is needed, laws proscribing aggressive panhandling can achieve the public interest with far less implication of First Amendment protections. A group called Center for the Community Interest has drafted a Model Aggressive Panhandling Law that would seem to address most of the concerns of those who support the ban (e.g., repeated requests, following or physically touching people, shouting) without a complete outlawing of all begging.

That's my opinion — any dissents?

Meanwhile, I have two more hasty stitches:

--Doesn't the City of Atlanta have attorneys on the city payroll to tell them these things? Why are they debating whether to pass a law that most second-year law students could tell them would be unconstitutional anyway. Is this a variant of the Politics of the Warm Fuzzy Feeling? "Heck, at least we tried! Don't blame us, blame those activist judges!"

--Similarly, what is it with politicians these days and their increasing tendency to overreact to problems with sweeping overinclusive bans? We've seen it with "pit bulls" and decongestants and teenagers after dark and lots more. Are we as a society getting so paranoid that our first response is to just "ban first and ask questions later"? Or are our politicians just becoming too lazy to craft proper laws? Whatever is causing this new "ban mania," it's taking us in the wrong direction.