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Are Fairlawn’s panhandling regulations constitutional?

SCOTT PIEPHO
Cases and Controversies

Published: May 2, 2012

"The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread." -Anatole France, Le Lys Rouge.

The city of Fairlawn has joined a growing movement of cities regulating panhandling. Like Akron a few years ago, Fairlawn’s new ordinance requires would-be panhandlers to register with the city to receive a panhandling license.

But the ordinance goes further with highly restrictive rules on where people may stand as they solicit money. Panhandlers will no longer be allowed within 25 feet of intersections, crosswalks, business parking lot entrances, ATMs or bus stops. Those restrictions may well be subject to court challenge.

The ordinance is aimed at the panhandlers of today who no longer accost pedestrians, but stand at intersections of major thoroughfares, carrying signs describing their plights and seeking handouts from cars stopped at traffic lights. In Fairlawn they station themselves in Montrose, the stretch of malls and shopping plazas along West Market on the western end of the city.

Since Montrose feels like it was specifically designed with malice toward pedestrian traffic, the only effective place to solicit money is where the traffic stops. Thus, the ordinance will make it impossible to effectively solicit money.

That the ordinance makes panhandling impossible appears, in the computer-inflected parlance of our time, to be a feature, not a bug. The comments of members of city council as reported in the press suggest that discouraging panhandling, not simply regulating it for safety, is the primary goal.

Mayor Roth said all of the right things––that the ordinance regulates panhandling rather than eliminating it, and that the purpose is safety of both motorists and panhandlers. But according to AkronNewsNow, he also suggested that the reason they are not prohibiting panhandling is that the law will not allow it: "It's my understanding that the Supreme Court of the United States, believe it or not, said that panhandling is a protected First Amendment right, so you really can't outlaw panhandling and that's not our attempt."

In addition, City Council President Russ Sharnsky was quoted in Bath-Fairlawn Patch as saying the city needed to take action because, "I've always been of the belief that if you want to give, give to a charity, not the people on the streets."

And Council Member Kathleen Baum held out hope that the regulations “[w]ill deter people from panhandling. It gives the city a better appearance."

All of this matters because panhandling is indeed protected as free speech. While the Supreme Court has not directly ruled on panhandling––that is a poor person soliciting money for purely personal use––the sum total of cases involving solicitation generally is read as standing for the proposition that panhandling is expressive activity.

But Fairlawn can still regulate protected speech, using “time/place/manner” restrictions. For example, even the most ardent defender of free speech would allow the government to prevent someone from using a sound truck at peak volume in a residential neighborhood at night, even if the speech otherwise is entitled to the highest protection.

To determine if regulations that restrict the time, place or manner of speech are constitutional, courts look first at whether they are content-neutral and second whether they are narrowly tailored and leave open ample avenues of communication.

A regulation is content-neutral if the reason for adoption is independent of government disapproval of the message being conveyed. That means the government is not allowed to ban panhandling because that would clearly be based on disapproval of the message.

But here the question is whether the government is allowed to regulate a particular message because it leads to an unsafe situation––panhandlers walking into traffic to take money from kind-hearted motorists. And this is complicated further by the statements made in support of the law, which drift from concerns about safety and toward disapproval of panhandling itself.

In addition, the rules themselves so effectively hamper panhandling that they suggest the ulterior motive. And it is on this second prong that the ordinance is likely to get stuck. Fairlawn will have a difficult time arguing that the regulations allow ample effective means of communication. By preventing panhandlers from standing in places where cars routinely stop, Fairlawn has guaranteed that the communication will be ineffective.

The wave of anti-panhandling legislation is likely to result in a decision or two from the high court clarifying the rules. The court has recently protected the speech rights of corporations, not to mention the auteurs of weird fetish videos. We will see if how well the majestic equality of American law protects the very poor.


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