HomeMy WebLinkAboutRegulating panhanding - Begging Protected by 1st Amendment The City of Neenah Newsletter Fall 2019
Regulating panhandling: Begging Protected by istAmendment
By City Attorney Jim Godlewski compelling governmental interest; be objectionable behavior, recent
Over the past months,citizens have content neutral;and impose the least Supreme Court decisions call that into
contacted City administration and the restrictive conditions possible. question.
Police Department with complaints So far,when courts have applied those In a case restricting signs in the public
about the appearance of panhandlers at standards,panhandling ordinances are right of way,the Court determined that
strategically visible locations in the City. found to violate the panhandler's First a challenge to those ordinances must
Often,the complaints expressed Amendment rights. first determine whetherthe regulation
concern hazards panhandlers pose at Before proceeding further with this (ordinance)is content neutral on its
busy intersections.Others expressed discussion, it is important to note that face.Where the regulation first defines
concern regarding the impact on the City officials have offered to assist by the speech or expressive activity
City's image.Still others are concerned obtaining services only to be rebuffed regulated, it is no longer content neutral
for the well-being of the panhandlers by the intended beneficiaries,the and therefore subject to strict scrutiny—
and those wishing to contribute in panhandlers themselves. a standard fatal to the validity of
ordinances seeking to control
response to their appeal. While it's clear that given the objectionable speech.
Many,in addition to their complaints, standards courts have applied to
expressed dismay that the City hadn't panhandling activity, an outright ban This direction the Court has taken leads
swung into action to restrict the on panhandling will not survive judicial to the troubling conclusion that even
activity. "Pass an ordinance prohibiting scrutiny. aggressive panhandling ordinances
panhandling"seemed to be the cannot survive challenge.
Furthermore,adopting an ordinance sentiment.This has led to the that is very likely unconstitutional will City leaders recognize the public's
involvement of the City Attorney's concern regarding panhandling and are
expose the City to significant expense
office to address the public's concerns. as civil rights law requires the losing monitoring legal developments in order
However,there are admittedly few to respond appropriately without
options due to constitutional party pay legal fees of the successful challenger. violating the First Amendment
protections provided for expressive protections of its residents.
activity like panhandling. The main reason courts have not been
reluctant to strike down panhandling Given the current state of the law,
Wait,what?!Constitutional protection? regulations is because such ordinances then, it appears unlikely that any
In short,yes.Courts have been regulate expression in a public ordinance regulating panhandling will
seek at c
confronted in several cases with namely sidewalks and right li survive a court challenge.As a result,
forum
ordinances that either severely restricted the City would be ill-advised to take
ways.This is due to the fact that the
or attempted to ban panhandling.The recipients of such"speech"are not any action to attempt to restrict
-,Judicial consensus categorizes panhandling.While that result may be
panhandling as expressive activity powerless—they can simply walk away .
from such troubling speech unsatisfactory, it is the most
.
protected by the First Amendment's reasonable conclusion given the state
guarantee of free speech. In those situations, it's unlikely that any of the law.
Furthermore,the locations where the ordinance seeking to regulate such
behavior would be upheld At the same The best course of action for residents
panhandling occurs,(usually on public . objecting to such behavior: Ignore it.
right of way encompassing and adjacent time,courts may be more sympathetic Not intending nor meaning to be callous
to attempts to curb behavior that traps
to City sidewalks or roads),are about the plight of the individuals
categorized by courts as classic public the unsuspecting and involuntary involved in the behavior,the success of
forums where the most basic expressive audience.
p their activity depends on receiving the
activity contemplated by the First Neenah adopted such an ordinance in attention(both positive and negative)of
Amendment occurs. 2010,found at section 11-97 of the the passing public. If that attention
The nature of panhandling leads to the municipal code.This provision was disappears and panhandling behavior is
currentjudicial consensus.Ordinances designed to control the most troubling not rewarded,it is likely that it will stop.
seeking to regulate or ban panhandling panhandling behavior.
No ordinance exists that can substitute
are therefore subject to"strict While the aggressive panhandling for the public's control of their reaction
scrutiny," requiring any regulation of ordinance would seem to be a to the objectionable,yet benign,
the expressive activity must promote a reasonable effort to reign in behavior.
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