A Stitch in Haste

Atlanta's activist city council has passed, by a 12-3 vote, a ban on all spoken panhandling in that city's downtown business district.

"Commercial Solicitation" or "to commercially solicit" is any request made in person on a street, sidewalk, or public place, without a permit, asking for an immediate donation of money or other thing of value, including the purchase of an item or service for an amount far exceeding its value, under circumstances where a reasonable person would understand that the purchase is a donation.

Full text of the ordinance here (PDF - 17 pages). The ordinance allows for up to 30 days' imprisonment and a $1,000 fine for a third offense.

I have previously blogged on the proposed ban, and remain convinced that it is a facially unconstitutional infringement of the First Amendment's guarantee of free speech.

Some supporters of the ban point to "similar" bans in other cities, most notably Chicago, that have been upheld in court. But a little research shows that those other bans are not at all similar, since they specifically target "aggressive" panhandling. In other words, those bans do not target speech, but conduct that is already illegal, such as harassment, assault and battery. Bans on aggressive panhandling may be duplicative, but they are not unconstitutional.

Atlanta's ban, by contrast, is ubiquitous: any form of spoken panhandling is prohibited, not just "aggressive" panhandling. (Silent panhandling is exempt from the ban.)

Some people have invoked the "O'Brien" test for restricting speech in a public forum. See U.S. v. O'Brien, 391 U.S. 367 (1968), or here. Even assuming that a "downtown business district" is a "public forum," O'Brien is still not applicable, since it only applies to "time, place or manner" restrictions that are content-neutral. Atlanta's ban is neither a "time, place or manner" restriction, nor is it content-neutral.

Consider the following hypothetical: I show up in the no-panhandling area, freshly showered and shaved, fully deodorized, wearing my best job interview suit, dress shoes freshly polished. I find a nondescript corner of a sidewalk, out of everyone's way, and then calmly and quietly start handing out business cards while saying to passers-by, "Please read my blog. Please read my blog. Please read my blog."

I'm not asking for any donations, nor am I selling anything. So am I violating Atlanta's panhandling ban? If not, then the ban is not content-neutral and is not entitled to the reduced First Amendment scrutiny of O'Brien.

Rather, the ban — being a content-based restriction on symbolic speech — is subject to the strictest First Amendment protection:

The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.

Sable Communications v. FCC, 492 U.S. 115 (1989). See also Loper v. New York City Police Department, 999 F.2d 699 (2nd Cir. 1993) (panhandling constitutes protected speech), or here.

Since a city can just as easily craft an ordinance banning only aggressive panhandling (which is, after all, the true "compelling interest" at stake), then by definition a ban on all spoken panhandling is not "the least restrictive means necessary." Stated differently, since even some aggressive panhandling bans have been declared unconstitutional, clearly any law that bans even non-aggressive panhandling must be even more constitutionally suspect.

People have now completely lost their Fifth Amendment protections of property in the name of "economic revitalization." Do we really need to strip the least powerful segment of society of their First Amendment rights for a similar excuse?

Dissenting views at purple america.

UPDATE: As expected, Atlanta's mayor has signed the ordinance into law.