In Reed v. Town of Gilbert, Arizona, the court ruled that government regulations curtailing free speech have to be as narrow as possible and must fulfill a “compelling government interest.” At issue was a town ordinance that restricted where signs for religious services could be displayed. But the decision, which applies to any local rules that limit certain types of speech, has caught some cities by surprise.
"It's an unanticipated consequence," says Joshua Cox, chief counsel with the city attorney's office in Columbus, Ohio, where police recently announced they would stop enforcing a ban on aggressive panhandling. Cox remembers reading about the Reed case: “You don’t typically look at a graphics case and think, ‘I wonder if this affects our panhandling ordinance.’”
The ACLU and other civil liberties groups had long argued that it was unconstitutional for municipalities to prohibit people from begging for money in public spaces. The Reed decision, which some legal experts say is a game changer, strengthened their argument.
Within two months of the decision, a federal appeals court deemed a panhandling ban in Springfield, Ill., unconstitutional. In the past two years, federal courts have also struck down panhandling laws in Grand Junction, Colo.; Tampa, Fla.; Portland, Maine; and Worcester and Lowell, Mass. In Ohio alone, lawsuits brought by the ACLU have led Akron, Cleveland and Toledo to repeal all or parts of their panhandling bans.
Most cities have some kind of ban on panhandling. Last year, the National Law Center on Homelessness and Poverty found that 61 percent of 186 cities had laws banning begging in “particular public places,” such as commercial or tourist districts. The same report found that such laws in those cities had become more common over the past decade.
City councils often enact these bans in response to complaints from local businesses that say panhandlers scare away their customers. Though cities typically already have laws on the books to address disorderly conduct and threats of violence, councils justify panhandling bans as a further way to protect people from feeling unsafe.
That goes too far, says Elizabeth Bonham, staff attorney for the ACLU of Ohio.
"Cities can’t curb free speech because begging makes people uncomfortable,” she says. “There is no constitutional right to not feeling bothered by confronting homelessness and poverty."
While some civil liberties groups argue the bans have always violated free speech rights, some say municipalities believed they were following the law.
“This is not one of these situations where the states and cities have been doing something wrong all along,” says Michael Mosley, a staff attorney with the Arkansas Municipal League who is helping two cities rewrite their panhandling laws. “You've got to take a fresh look after a Supreme Court decision. That's what's going on here.”
As part of negotiations with the ACLU, the towns of Rogers and Hot Springs, Ark., plan to limit their bans on public begging to dangerous situations, such as approaching a vehicle at an intersection.
“The way we view it is," he says, "it’s a public health and safety issue, keeping people out of the streets."
He argues that the language in the previous bans adhered to the consensus view -- at the time -- of how certain types of speech could be regulated. In fact, federal courts had upheld several panhandling bans before the Reed case and then reversed their decisions based on the new legal precedent.
Instead of criminalizing panhandling, homeless advocates say cities should invest in housing and employment programs to bring panhandlers out of poverty.
“I hope [the panhandling bans] are replaced by more constructive approaches to begging," says Maria Foscarinis, executive director of the National Law Center on Homelessness and Poverty.
Her group helped launch “Housing Not Handcuffs,” a campaign that seeks broadly to stop the institutional practice of criminalizing homelessness “by making it illegal for people to sit, sleep, and even eat in public places, even in the absence of adequate alternatives.”
Foscarinis also points to a program launched in 2015 in Albuquerque, N.M., as an innovative way of dealing with panhandlers: The city offers panhandlers day jobs doing work for the public works department. Chicago and Portland, Maine, have already copied the idea.
“The issues that cities are concerned about -- about public space, about people, about visible poverty -- these are not unreasonable concerns," says Foscarinis. "But the issue is, what do you do about them?”
*CORRECTION: A previous version of this mistakenly cited the National Law Center on Homelessness and Poverty as the National Center on Homelessness and Poverty.
