Panhandling - Let’s Meet at the Intersection of Free Speech and Public Safety

By: Ruth Pearson

Most people are familiar with panhandlers, or those individuals soliciting money or food from people, either verbally or through the use of a sign or collection container, in a public place. This activity is unfortunately increasing as times get more difficult for families. As a passer-by, we have two choices. We can either dig in our pockets for spare money to share, or we can continue on our journey without responding. A municipality, however, has additional safety concerns to consider. Local governments must not only consider if panhandling represents a denial or unawareness of available county wide services including shelter, food assistance, job readiness training, and other financial help, but they must also consider any unwanted consequences of panhandling such as impeding pedestrian or vehicular traffic, blocking passage of pedestrians, disorderly conduct, possible harassment and assault, interference with tourism, and disruption to small businesses.

In asking for money, either implicitly through the use of a sign, or expressly through a verbal request, a panhandler is conveying a message that he or she needs help. This is free speech. In enacting laws limiting panhandling, states must consider the impact their action has on a panhandler’s First Amendment right to free speech.

Laws Addressing Panhandling

There is no one comprehensive federal law that governs panhandling. States and local governments are therefore left to their own devices when developing statutes and regulations. While lower courts have come to accept that panhandling is speech as recognized by the First Amendment, this journey did not happen overnight. This historical delay in accepting panhandling as speech, combined with decentralized laws, has resulted in a complex, and dramatically different, web of ordinances and policies across states.

Most states and local governments, in an attempt to protect the interest of pedestrians, drivers, and panhandler themselves, have passed legislation seeking to control and contain the act of panhandling. While varied, most panhandling laws fall into three distinct categories:

I.          Outright Bans on Panhandling

Outright bans make panhandling illegal in that jurisdiction. These types of overly broad laws are often struck down as an unconstitutional limitation on free speech.

II.         Bans on Aggressive Panhandling

Many municipalities have enacted legislation to restrict aggressive panhandling. Aggressive panhandling is defined as conduct on the part of the panhandler that consists of actual or implied threats or menacing actions, unwanted touching, or following a person who refuses to give money. Some cities go a step further and define aggressive panhandling as behavior from the panhandler that causes annoyance, inconvenience or alarm in another. An example of an aggressive ban is one that precludes a panhandler from coming within a certain distance of a donor without permission.

While laws that impose an outright ban on panhandling are routinely struck down as unconstitutional, lower courts historically struggled with conforming to a uniform standard on whether aggressive panhandling laws are constitutional.

III.        Restrictions as to Time, Place, and Manner

The most common type of panhandling laws are time, place and manner restrictions. These types of law do not place an outright ban on panhandling. Instead, they attempt to limit the activity by pacing restrictions on the time of day that panhandling can occur, or place limits on the location and manner in which panhandling is allowed. For example, timed restrictions may state that an individual may not solicit money in the evenings after 8:00 PM. A place-based restriction may preclude panhandlers from asking for money near ATMs, banks or check-cashing businesses. A restriction on the manner of panhandling might state that a panhandler may not block the path of pedestrians in an attempt to solicit money.

The Right to Free Speech

Every restriction limiting the act of panhandling involves the balancing of a state’s right to protect the safety of its citizens with an individual’s right to free speech. The Supreme Court has not consistently given guidance to lower courts on how to analyze this balancing act.

Courts in the United States have held that the First Amendment, which is applicable to the states through the 14^th Amendment, prohibits the enactment of laws that abridge a person’s freedom of speech. In Schaumburg v Citizens for a Better Environment, 444 U.S. 620 (1980), the Supreme Court addressed the question of whether charitable solicitations constitute free speech. The Court found that solicitation, or the request for money, closely intertwined with free speech, and that such solicitation is protected under the First Amendment. The First Amendment therefore protects a charity’s ability to solicit donations. What the Supreme Court failed to address in Schaumburg, however, is whether personal requests for money, or panhandling, fall under such First Amendment protections. The Supreme Court in Schaumburg also did not define the term charitable solicitations, or decide when, or even if, a solicitation for money ever ceases to be persuasive speech. This failure led to a myriad of conflicting laws.

Some of this confusion was addressed in Loper v New York City Police Dept., 999 F.2d 699 (2^nd Cir. 1993). In Loper, the Court struck down a law that punished acts of loitering with the intent to panhandle. In applying the Schaumburg ruling to panhandlers, the Court found that personal requests for money due to an individual’s economic condition constitutes an exercise of freedom of speech. Panhandling therefore falls under First Amendment protection.

How to Determine if Panhandling Laws are a Constitutional Violation

Courts generally find that the First Amendment prohibits as unconstitutional any laws that regulate or restrict expressions of speech because of its message, its ideas, its subject matter or its content. Moving from a definition to application, however, has proven to be tricky. In analyzing whether an ordinance impacting panhandlers is constitutional, there are several questions that a court must address.

I.          A court must determine if the restricted activity takes place in a public space. Streets, sidewalks and medians are traditional public forums in which panhandlers, as a member of the public, can stand and operate. Activities which occur on private property, or non-public forums, can be more easily restricted.

2.         A court must determine if the ordinance in question is content neutral or content based. The analysis of whether an ordinance violates a person’s First Amendment rights must address whether the law is content based or content neutral. An ordinance that is content based applies to a particular speech because of the topic being discussed or the idea or message being expressed. An ordinance that is content neutral is applicable to the intended audience without consideration of the content of the message being conveyed. Whether an ordinance is content neutral or content based is important as this analysis triggers the level of scrutiny that the courts will apply in reviewing the law.

An ordinance restricting solicitation in public places will be subject to intermediate scrutiny if it is:

·         Content neutral;

·         Narrowly tailored to serve a significant government interest such as preventing harassment or ensuring the free flow of traffic; and

·         Leaves open ample alternative channels of communication.

An ordinance restricting solicitations in public places will be subject to the court’s most exacting level of scrutiny, strict scrutiny, if it is content based.

Despite the above definition of content neutral and content based speech, lower court’s rulings dramatically differed on how to determine what category of review a law fell into. The Supreme Court answered some of these questions in the pivotal case of Reed v Town of Gilbert, 576 U.S. 155 (2015).

In Reed, the Town of Gilbert, Arizona, had on its books a Land Development Code which subjected signs to different restrictions and requirements based on the type of information contained within the sign. Political signs were treated more favorably, while signs indicating the time and place of an event, like the sign in question which announced the service time for a local church, were treated more harshly.

The town argued, and the lower court found, that the utilization of different restrictions for various sign categories was content neutral as implementation of the law turned on the category of the sign displayed, and not the specific language contained therein. In rejecting this interpretation of content neutrality, the Supreme Court rearticulated the standard for when regulation of speech is content based. Specifically, the Court found that by attaching restrictions based on the type of sign, the government was, in essence, creating a law that relied on the topic being discussed, which rendered the law content based.

Two-Part Supreme Court Test

In finding that the law in Gilbert was content based, the Supreme Court provided direction to the lower courts in assessing the content neutrality of a law. The Court implemented a new two-part test for lower courts to use in determining if a law is an unconstitutional violation of an individual’s right to free speech.

The first part of the test involves analyzing if the regulation in question is on its face content neutral or content based. This test is important and changed the landscape of the analysis. Instead of looking at the motive of the government agent in enacting its law, the Reed Court stated that the determination of content neutrality or content base restrictions must be made by examining the plain language of the ordinance. This means that a lower court is not to ask if the legislation was passed to combat aggressive tactics or to address public safety concerns. Specifically, the court stated that if a code is content based on its face, the ordinance is automatically subject to the court’s strict scrutiny without any additional inquiry.

Under a strict scrutiny review, the state actor must show that:

·         the regulation in question serves a compelling state interest; and

·         is narrowly drawn to achieve that result.

In examining if a law is narrowly drawn to achieve its stated purpose, courts are to apply a “least restrictive means test”. If it is shown that the government could accomplish its stated purpose by any other means than the regulation as enacted, the law fails strict scrutiny and is unconstitutional.

In order to survive a strict scrutiny review, a state actor must present empirical evidence justifying its stated reason for the law. For example, if a city institutes a ban on panhandling on a busy median over safety concerns involving potential accidents or injuries, then it must present traffic studies or accident statistics revealing that this is a justifiable concern. Additionally, the state must show that the data presented is causally connected to the specific concern being addressed. Using the above example, it is not enough to present accident statistics showing a rise in traffic fatalities in the city, the data must show that there is an increase in traffic fatalities at the intersection or median where the panhandling is taking place, and that the activities of the panhandlers are the reason for the fatalities. Most ordinances restricting panhandling after Reed have been found to be content based and accordingly subject to strict scrutiny. Most of these cases, unable to survive strict scrutiny, or even intermediate scrutiny, have resulted in the invalidation of the panhandling laws.

The Legal Landscape Following Reed – Where Do We Go From Here

Fearing constitutional challenges and penalties, many jurisdictions voluntarily invalidated their panhandling ordinances following Reed. Despite this action, many police departments still continue to receive calls from concerned individuals regarding panhandlers. Once a call is received, the police have an obligation to investigate. In addition to this community response, many municipalities continue to fret over unhoused individuals asking for money in public. Given this ongoing concern, some cities and states, knowing that their actions might eventually be struck down by the courts, continue to institute new restrictions on panhandling, arguing that panhandling is a safety hazard. The Federal Appeals Courts’ rulings on these new initiatives have been mixed.

Oklahoma City passed a law after Reed stating that it is illegal for an individual to sit or stand, in or on any unpaved median, or any median of less than 36 inches, for any period of time. The U.S. Court of Appeals for the 10^th Circuit struck down Oklahoma City’s ban, ruling that the city failed to prove a clear safety problem caused by panhandlers in the medians. The U.S. Supreme Court failed to take up the case, leaving the Circuit Court’s ruling in effect. In contrast, Roanoke, VA passed a law in 2023 which bans panhandling on medians less than 4 feet wide. While sparking debate, this ordinance still remains on the books. Other municipalities, fearing court challenges, are considering other ways to address panhandling in their jurisdiction outside of restrictive panhandling ordinances.

Utilization of Existing Laws and Regulations

  In Clatterbuck v City of Charlottesville, 92 F. Supp. 3d 478 (W.D.VA. 2015), the Appeals Court stated that local governments can use existing traffic safety laws to address public safety issues stemming from panhandling. For example, VA Code §46.2-818 prohibits stopping a vehicle of another for the purpose of impeding its progress. VA Code §46.2-888 prohibits stopping a vehicle in such a manner as to impede or render dangerous the use of the highway by others. Other existing laws punish criminal acts. VA Code 18.2-58 makes it a crime if aggressive panhandling results in money being turned over in response to a threat, thereby amounting to robbery. If the panhandler touches the person, VA. Code 18.2-57 can be used to arrest the panhandler for assault and battery.

The problem with the approach as stated in Clatterbuck , however, is that it involves police engagement and too easily criminalizes the act of being poor in America. If an individual is begging for money, it’s hard to imagine how helpful it is for anyone concerned to give the individual, with the least likely ability to pay, a citation resulting in monetary fines, penalties, and even jail time. The criminalization of panhandling also fails to offer any viable solutions to the underlying problem.

Education and Awareness

Instead of issuing fines and citations to panhandlers, many communities rely on community education. With this initiative, local governments attempt to ensure that panhandlers receive information on the community resources and services available to them. As a part of these education awareness programs, a local community may also place signs or other visible materials along medians to educate potential donors about more effective ways to help the disadvantaged, including donating to direct service organizations who are better equipped at assisting the food insecure and unhoused. Police officers may also be trained to respond to complaints involving panhandlers by offering information on community resources instead of issuing citations or arrests.

One difficulty with education initiatives is that studies have shown that many panhandlers are already receiving some sort of community assistance in addition to panhandling. This, however, should not be a deterrent to continued education and outreach as a community continues to fight to assist the disadvantaged.

Conclusion

Despite the continued difficulties surrounding how to proceed with addressing panhandling, recent case law has demonstrated that a city or state must carefully tailor any proposed panhandling legislation in such a way that they are not overbroad, and that they do not constitute panhandling bans disguised as safety regulations. Instead of criminalizing panhandling, a local government must continue to work with community organizations to assist those who are hungry and unhoused. Everything else just puts bandages on the underlying problem of economic insecurity.