Jeff Schwartz: Falsely Criminalizing Ickiness At The Expense Of Civil Rights – April 4, 2010

Sunday, April 4, 2010

Last week in this newspaper, Arcata City Attorney Nancy Diamond said in effect “Bring It On” to those persons who have threatened to sue the City of Arcata over the new panhandling ordinance. She said people threaten to sue because they get emotional when an ordinance passes.  I find that comment offensive considering that we are talking about a law that censors an individual’s communications and prohibits certain forms of public gathering, and both of these activities are protected by the First Amendment. As the director of the non-profit organization Humboldt Center For Constitutional Rights (HumRights) her comments inspired me to take up her challenge. A panhandling ordinance is shameful for any city; it is utterly shameful for the City of Arcata.

But Nancy Diamond can’t take all of the credit for inspiring the Board of HumRights to challenge the panhandling ordinance. Mark Wheetly and Michael Winkler both assisted her. In debating the merits of the then proposed-ordinance, Wheetly argued that Crescent City has a similar law. Since when does Arcata want to emulate Crescent City? Then councilmember Michael Winkler lamented in this paper last week that he was asked for money while he waited for a bus. Winkler told the person “no” and he had to still stand at the bus stop with that person until his bus arrived. Perhaps, had the panhandler sprung for a taxi for Winkler, easing his discomfort, he might have voted down the ordinance. We’ve come a long way from a unique and proud progressive city if a councilmember feels icky when a person in dirty clothes stands nearby.

No one likes panhandling. Nor do we like to see sick impoverished children and people sleeping in the forest or in doorways of abandoned businesses. There are two approaches to a social problem — fix it or get rid of it. Crescent City and other predictably mediocre communities around the country as well as your fend-for-yourself Tea Bagger hope to get rid of it, that is the easy way. Compassionate caring unselfish persons want to fix it. Arcata’s panhandling ordinance, in the mean spirit of Crescent City and the Tea Baggers, screams “don’t fix it, get rid of it.”

It irks the board of HumRights whenever a government decides to get rid of something icky by infringing on our First Amendment right to free speech and assembly.  I can’t think of a better challenge for HumRights, whose bylaws require a constitutional wrong before it can act, than Arcata’s panhandling ordinance.

While this law is billed as stopping aggressive panhandling, half of it has nothing to do with aggressive panhandling. It has to do with panhandling in front of businesses. The first part is the only part prominently put out to the public—no aggressive panhandling. The second part is the troubling part—no panhandling in any place where a person would likely panhandle. HumRights will not challenge the aggressive panhandling portion of the ordinance. While we agree with Shane Brinton that there are other laws that already cover aggressive panhandling, the offensive part of the ordinance is the second part that prohibits anyone from asking for money in front of businesses, at bus stops, freeway entrances and so forth. Besides the icky factor, what is so terrible about a person at a bus stop or business asking for a dime, getting a “no” and moving on?

Councilmember Susan Ornelas changed her vote because of the second part of the  ordinance that outlaws non-aggressive panhandling because anyone who asks for an immediate donation is considered a panhandler. That includes people raising money for schools or breast cancer prevention.

Girl Scouts are permitted to ask for money because they sell cookies in exchange. What could happen is that all of the “right kind” of groups will start selling something that costs very little, like stickers. So you’ll see in front of the North Coast Co-op a person asking for money to help fight breast cancer in exchange for a sticker or bracelet or something else that is inexpensive, just to avoid the panhandling law. Even if there is no exchange no one at the Co-op is going to call the police to arrest a person who asks for money to cure breast cancer. What cop will tell a person raising money for breast cancer to move along? But the police officer will tell the poor chump who is already so down and out that he needs to ask for a hand out to move on or suffer the consequences of the law.

The City of Arcata drafted the ordinance to get rid of the down and out while allowing the “right kind” of groups to keep on asking for money. But the City could not come out and say that. The city attorney could not write language that would target particular kinds of groups who ask for money. That would be unconstitutional on its face. Instead all groups are excluded. This way the City Council can rely on de facto discrimination and obfuscation: acceptable groups will be allowed to “sell” stickers; businesses will simply not report solicitors they like; and cops will selectively enforce the ordinance, all to get around that pesky thing called the First Amendment.

But the city attorney is wrong. First Amendment violations do not work that way. If an ordinance has the intended consequences of infringing on a target group, it is the same thing as writing into the ordinance that you intend to infringe on the target group.

What we have here then is an ordinance that leaves it up to businesses or individual persons who are asked for money to pick and choose who can bug them or not. If people do not like a homeless man, a gay advocacy group or a Muslim charitable society, they can call the police. If they like the Little League dads, they won’t have to pick up the phone.

Arcata’s panhandling ordinance is, for lack of better words, extra evil, because it allows the government to restrict freedom of speech and assembly by putting in the hands of private businesses the public function of who gets to say what on public sidewalks.

It is shameful and humiliating to be part of a city that wants to get rid of a social problem instead of fixing it. It is even worse when they try and bend the United States Constitution to do so.

Nancy, we accept your challenge. Michael, next time just take a cab .

Jeffrey Schwartz is a local Arcata attorney and the director of the Humboldt Center for Constitutional Rights, located in the Jacoby’s Storehouse. HumRights is dedicated to the protection of an individual’s right to free speech and assembly. Even at the expense of ickiness.