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.

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.