Difficult Legal Issues Surround Anti-Panhandling Ordinances

Panhandling, the activity of requesting donations while standing on public sidewalks and streets, is often annoying to the individuals being solicited and feared by businesses as an activity that will drive away customers or lead to crime. Consequently, cities attempt to restrict panhandling, particularly in locations frequented by tourists. However, the First Amendment prohibits the enactment of laws "abridging the freedom of speech." The inherent legal tensions in attempting to restrict a particular form of speech, panhandling, are briefly and incompletely discussed.

The U.S. Supreme Court, in a unanimous June 2015 decision, invalidated a city's sign ordinance that created various categories of signs and prohibited a church from permanently displaying a directional sign to its location (Reed v. Town of Gilbert, Arizona). The Court wrote:

"Content-based laws - those that target speech based upon its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. ... Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Furthermore, "a law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification or lack of 'animus toward the ideas contained' in the regulated speech." Thus, "because the Town's Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest."

The federal Court of Appeals for the Seventh Circuit in August 2015 applied the legal standards of the Reed decision to an anti-panhandling ordinance (Norton v. City of Springfield, Illinois). This ordinance applied to the downtown historic district and allowed signs requesting money and oral pleas to send money later, but did not allow an immediate oral request for money. Finding Springfield's ordinance was a form of content discrimination, the Court ordered the lower court to issue an injunction against its enforcement.

In February 2015, prior to the Reed decision, the federal Court of Appeals for the Fourth Circuit invalidated a Henrico County, Virginia, ordinance that prohibited soliciting contributions and engaging in other activities from a highway median (Reynolds v. Middleton). The county made a traffic safety based argument; however, it had no direct evidence of traffic problems, except perhaps at a limited number of busy intersections. Nor was there any history of criminal prosecutions of solicitors who actually blocked traffic. Consequently, the Court determined that the ordinance was not sufficiently narrowly tailored and invalidated it.

Do unwilling listeners to panhandling have the right to be left alone? Some panhandling ordinances prohibit "aggressive" panhandling that targets specific actions such as touching or blocking behaviors. These very narrowly defined activities that fall short of an outright ban on panhandling might be upheld. However, U.S. Supreme Court decisions generally uphold the First Amendment right to speak in a public forum such as the streets, even if it makes listeners uncomfortable. Thus, it is legally difficult restrict panhandling. While it might seem intuitively easy to simply prohibit panhandling, under a "know-it-when-we-see-it" standard, courts are concerned about the broader implications of government prohibiting conduct generally and speech.

The U.S. Supreme Court in 1972 struck down a vagrancy ordinance as unconstitutionally vague and providing the police with too much discretion. It prohibited activities such as wandering or strolling around from place to place "without any lawful purpose or object" (Papachristou v. City of Jacksonville). Justice Douglas, writing for the Court, noted that the historic vagrancy laws in England were designed to stabilize the work force and that walking and wandering "activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence. They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau."

The inconvenience of panhandling as a public activity may be part of the price that we pay for a free society. One legal solution to eliminate panhandlers is to remove the traditional public forum area. This is accomplished with gated communities without public streets that are only accessible to residents. Self-contained communities that are physically distant from central city districts are an unspoken on-the-ground reality. Sometimes areas such as shopping malls and airports, for security or safety reasons, may lawfully restrict access. A 1992 divided U.S. Supreme Court decision allowed airports to prohibit solicitations within terminals as the terminals were not considered public forums. Under a reasonableness standard, solicitations could be prohibited for reasons of traffic flow and to prevent duress or fraud. (International Society for Krishna Consciousness v. Lee). Numerous ordinances attempt to follow this model.

However, apart from law, a multitude of social questions swirl about panhandling. This list is familiar and includes, among many items, self-reliance, poverty, mental illness, homelessness, personal responsibility, and education. It is possible that some panhandlers view it as their profession and do not meet a "truly-needy" test that critics of panhandlers in general discuss. However, to the extent that panhandling reflects unmet human needs, it is one piece of much broader social issues that have no simple solutions. Many commentators state that city ordinances, such as those concerning sleeping, occupying parks, feeding the homeless, and prohibiting panhandling, essentially attempt to criminalize homelessness and move the social problems of homelessness elsewhere. A comprehensive solution to the social problems that panhandling is the public face of is illusive.