Dave Meserve: Don’t Let A Pointless Panhandling Prohibition Destroy Free Speech – March 18, 2010

Thursday, March 18, 2010

On March 3, the Arcata City Council introduced a two-part panhandling ordinance.

The first part makes it unlawful for any person to “panhandle in an aggressive manner in any public place.”

Aggressive panhandling is most often a form of assault, which is already illegal, but although unnecessary, there is no serious legal problem with this section.

The second part of the ordinance will make it illegal in Arcata to panhandle within 20 feet of any supermarket, retail store, restaurant, bar, ATM machine, bus stop, parking lot or street corner.

According to the ordinance, “Panhandling shall include using the spoken, written, or printed word, bodily gestures, signs, or other means with the purpose of obtaining an immediate donation of money or other thing of value.”

The council is well aware of the fact that this definition of panhandling includes such activities as selling Girl Scout Cookies, selling raffle tickets to fundraise for a non-profit, ringing a bell for the Salvation Army, asking for signatures for a petition with a donation can to support the cause, requesting support for a political candidacy if it includes fundraising, encouraging passers-by to enter a parking lot for a sports team car wash or any other use of a donation can or a request for funds benefiting any political or non-political purpose.

Councilmember Susan Ornelas stated very correctly that in supporting the blanket ban on solicitation she was “throwing the baby out with the bathwater.”

She later explained that, “The bathwater is the panhandling, aggressive panhandling, and the baby that’s going out with it is the Girl Scout Cookies, the Breast Health Project people walking around. I’m very aware of that.”

In reality, the baby that’s being thrown out with the bathwater of panhandling is our constitutionally protected freedom of speech.

Note how Ornelas inserted the phrase “aggressive panhandling” into the explanation of her analogy. Listen (online at cityofarcata.org) to all of the councilmembers who support the ordinance, and you will find repeated uses of the qualifier “aggressive” when they are actually speaking about the prohibition of all panhandling near businesses. The second part of the ordinance does not depend on the manner of panhandling, polite or not; it outlaws the activity itself.

It also takes away the right of business owners to invite their favorite non-profit to set up on their public sidewalk to inform the public and raise funds. This is but one of many unintended consequences of such a law.

The panhandling ordinance makes us poorer as a community. Are we so afraid of or uncomfortable with the behavior of people who are different from us that we must fabricate laws limiting our own freedom, just so we can perhaps meet legal muster for limiting theirs?

A law which seeks to limit the First Amendment protection of free speech in any way must fulfill three court-defined requirements:

• It must be “content neutral.”

• It must serve a legitimate government interest.

• It must leave open channels of alternate communication.

Outlawing aggressive panhandling serves the legitimate interest of public safety and comfort.

Outlawing begging but not other forms of soliciting may serve the interest of making the public more comfortable and more likely to patronize local businesses, but it fails to be “content neutral.”

Outlawing the soliciting of funds for community non-profits or political candidates serves no legitimate government interest.

Outlawing both begging and fund-raising in so many public spaces severely limits “channels of alternate communication.”

The panhandling ordinance makes us poorer as a community. Are we so afraid of or uncomfortable with the behavior of people who are different from us that we must fabricate laws limiting our own freedom, just so we can perhaps meet legal muster for limiting theirs?

If enacted, a civil liberties-based lawsuit against the City is almost inevitable. Even if the ordinance is eventually upheld in court, the cost of defending it could be huge.

We would be wiser as a community to enact and enforce an ordinance against aggressive panhandling, and leave it at that.

Then we should work to help each other feel comfortable in responding to polite panhandling with firmness and self assurance, whether we choose to donate or to just say “no.”

Arcata has a proud history of defending civil liberties. Let’s maintain that tradition.

Please contact your councilmembers and tell them what you think of the new panhandling ordinance, and come for public comment at City Hall, 6 p.m. on Wednesday, March 17, when the adoption of the ordinance (it was only “introduced” on March 3) will be on the Consent Calendar, at the beginning of the council meeting.

Dave Meserve is an Arcata resident who finds assaults on the Bill of Rights much more threatening than panhandlers.

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6 Responses to “Dave Meserve: Don’t Let A Pointless Panhandling Prohibition Destroy Free Speech – March 18, 2010”

  1. Preacher

    Dave I whole heartedly believe that something needs to be done about panhandling in Arcata and the surounding areas, I am tired of telling the same people no on a daily basis, I feel it makes me rude and I honestly avoid the plaza for that reason. Eithter that or you are lumped in with them, it seems, if you stop to talk with them instead of giving them money. Regaurdless, I feel that there are constant civil rights violations occuring in this area, and I have been many places, so it does not surprise me to hear that this kind of law making is taking place. When you get to a town where the cops will give you a hard time for standing out side a reastaraunt that you are eating dinner at, for no other reason than that you were talking to a panhandler in a friendly manner; thats a strong sing than civil rights are on the way out the door if people are not carefull and keep these, regular, no different except your in charge for now polititions in check. If we don’t so many people will be in jail that the only job will be prison gaurd or inmate and the polititions will vote for themselves. An obvious exhageration of a very serious problem, obviously if they wanted to deal with panhandling only they would have writen a law limiting peoples abilitiy to remaine stationary while panhandling with an exclusion for legally recognized non for profit organizations such as salvation army. but why do that when you can pass a law that allows Big Brother to arrest any political opposition that canvasing for support. Now I dont have an answer really to the problem of panhandling but I and others have a bunch of great ideas that would better suit public interest, not just the interests of a few beacause we all have a right to enjoy the benifits of what Arcata, the nicest place I have ever been, has to offer.

    #740
  2. Preacher

    sorry bout the grammer :)

    #741
  3. Erik

    Dave,

    I appreciated your thoughtful argument, which I read just after posting a response to Kevin Hoover’s editorial on this site. I can’t agree, though, with your argument that we should just accept aggressive panhandling, including implicit intimidation at ATMs, etc., as the price of community life.

    I wonder whether the “baby with the bathwater” objections to banning legitimate groups’ collection (Girl Scouts, etc.) could be met simply by adding language authorizing (non-aggressive) soliciting by _organizations_? This would still be a “time and place” restriction on speech, serving a legitimate government interest maintaining public quality of life; it would be speech content neutral, and would bar all individual panhandlers, but permit solicitation for donations by organizations (they would also, however, be subject to a “no aggressive begging” standard. Business owners could still invite legit groups to set up booths outside their business.

    I treasure the First Amendment as much, I hope, as anyone, but there is a long legal tradition of regulating harmful or socially disruptive conduct, regardless of whether it includes a speech component (no shouting fire in a crowded theater, no inciting to riot, etc.).

    As you point out, time-and-place restrictions pass muster so long as they’re content-neutral and provide an alternate means of expression. Should the Arcata bill pass, aggressive panhandlers are free to move down to Eureka until Eureka passes a similar bill, and/or the panhandlers learn to be polite (or not to be too glib about the minority of genuinely incapable homeless) start earning a living.

    #766
  4. Hey Mr. Meserve, why don’t you go out and give away all YOUR money and YOUR weed to these lazy lay-about losers! Shut the fudge up and give all your hard-earned shyte to the trash then come back and talk to us. Jerk.

    #767
  5. Frank Rizzo

    Since when does Komrade Meserve care how much the legal fees are for the City when both Arcata and Eureka had to spend gobs of money because of his stupid anti-Armed Services “no recruiters on campus” fiasco?

    #843
  6. Bandor

    Well… I guess I have become an Arcata moderate. As a second generation citizen of Arcata, I have hung out on the plaza, smoked weed two blocks away in the park (now the bus station), and been generally scared as shit of the cops. Admittedly that was 20 years ago when you couldn’t get away with much. Now I see people taking bong hits on the corner, hassling families, and generally screwing up downtown.
    Here comes my back in the day rant: Twenty years ago there were cool, respectful, skaters grinding the steps on one side of the statue (now banned by various laws), local kids hanging out on the other side of McKinley (not many locals now), and some random panhandlers asking for change on the corner (from one or two, to a pack of twelve or more these days). It pissed people off, but had some semblance of balance. Now the only people that want to hang out on the plaza are transient kids (the real homeless I see are on the outskirts of town) and occasionally some hardcore liberals (Dave, I seriously love you: voted for you twice [Shane not so much]).
    With the exception of Farmers Market days, downtown Arcata has become a haven for loser kids with a grudge. I have offered food to people outside of Safeway more than once. A gift of two pounds of bananas got me a “Thanks for nothing.” response. A gallon of orange juice for three people asking for “anything” got a “We wanted beer”.
    At this point when someone asks me for money (or food, or beer, or weed, or anything) all I can say is NO. Being an Arcata liberal (oh wait, I think I might be an Arcata conservative now) I would like to give to some help to those in need, but since 98%+ of people asking could do it for themselves, I just say NO to everyone, unless it is painfully obvious that they need help.
    The new law will hopefully clear out some of those with less need and bring back more balance. If that happens I will be happy to give my resources out to help those who really need my money, or food, or whatever else I can afford give.
    Until then, NO will continue to be my standard answer.
    Bandor

    #845

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