Dave Meserve: Don’t Let A Pointless Panhandling Prohibition Destroy Free Speech – 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.
