HomeMy WebLinkAboutPanhandling Ordinances after Reed & Norton - LoWM d
Panhandling Ordinances after
Reed and Norton
Maria Davis,Assistant Legal Counsel,League of Wisconsin Municipalities
The First Amendment prohibits In 2015,the United States Supreme in Reed also made it very clear that a
laws abridging the freedom of speech Court decided Reed v. Town of Gilbert.' content-based law will be subject to
and is applicable to states through The petitioners in Reed filed a claim strict scrutiny regardless of how benign
the Fourteenth Amendment!When against an Arizona town,arguing that or well-intentioned the government's
evaluating a regulation of protected certain provisions in the town's sign purpose behind the law is.10 Although
speech,a court must determine the code infringed on their right to freedom Reed contemplated sign code provisions,
proper level of judicial scrutiny to be of speech_The sign code distinguished its holding carries First Amendment
applied,depending on whether the between categories of signs based on implications that reach beyond the realm
regulation is aimed at the content of that their communicative content and applied of sign codes.
speech.2"In a traditional or designated different restrictions depending on
public forum,content-neutral restrictions which category a sign fell in to.The Ordinances prohibiting or regulating
on the time,place,and manner of category at issue in Reed pertained to panhandling are an example,as illustrated
expression must be narrowlytailored "Temporary Directional Signs Relatingby the Seventh Circuit Court of Appeals
to servesome substantial governmental to a Qalifying Event,"whg h received decision in Norton v. City of Spring field."
interest,and must leave open adequate the strictest treatment under the code in In Norton,the court considered the
alternative channels of communication" terms of permitted size and placement constitutionality of a city ordinance that
-also known as intermediate scrutiny.' duration.'The code defined"qualifying prohibited panhandling in the city's
In contrast,when a regulation of event"as"any gathering, downtown historic district." The
y assembly,
ordinance defined"panhandling"as"an
protected speech is content-based,the activity,or meeting sponsored,arranged,
highest level of scrutin strict scrutiny, or promoted b religious,charitable oral request for an immediate donation
g y' y' P y a re g applies and the regulation may only be community service,educational,or other of money."" Signs requesting immediate
justified by the government proving the similar non-profit organization."' donations and oral requests for donations 4
regulation is narrowly tailored to serve at a later time were permitted. The
a compelling governmental interest.4 Ultimately,the Court held the sign Seventh Circuit first decided Norton in
Panhandling,often defined by ordinances code provisions were unconstitutional as 2014 in favor of the City of Springfield,
as a verbal or written request for the content-based regulations of speech that Illinois,upholding the ordinance as a
immediate donation of money,is a did not survive a strict scrutiny analysis. content neutral regulation of speech
form of speech protected by the First Reed clarified that a law is content based that did not restrict speech because
Amendment.` Case law demonstrates on its face if it addresses a specific topic of the message conveyed or because
that ordinances affecting or regulating or subject matter,even if it does not of a governmental disapproval of that
panhandling can be either content-based ulati discriminate among viewpoints within message."Upon a petition for rehearing,
or content-neutral. that topic or subject matter. The Court the court deferred reconsideration of
............................................... ............................................................................................................
1. Thayer v.City of Worcester,144 F.Supp.3d 218,232-33(D.Mass.2015).
2.Id.at 232. Bo. p,19
3.Id.
4.Id.at 233.
5.United States v.Kokinda,497 U.S.720,725(1990).
6.For a more in-depth discussion of Reed v. Town of Gilbert,see Licensing and Regulation 397.
7.Reed,135 S.Ct.2218,2225.
8.Id.
9.Id.at 2230.
10.Id.at 2228.
11.Norton v.City of Springfield,806 F.3d 411(7th Cir.2015).
12.Id.at 412.
13.Id.
14.Id.
15.See Norton v.City of Springfield,768 F.3d 713,717(7th Cir.2014)rev'd 806 F.3d 411(7th Cir.2015).
18 The Municipality March 2019
the case until the Supreme Court decided Reed."After the
Reed decision,the Seventh Circuit reversed its opinion in
Norton,finding the city ordinance was unconstitutional."The
court noted that Reed altered its understanding of content Let's show the world what
discrimination—an ordinance that regulates because of the we can do together.
topic or subject matter it discusses,even if it is neutral towards
viewpoints within the topic area or subject matter,is content Day by day. Project by project.
based and subject to strict scrutiny.1 "Any law distinguishing
one kind of speech from another by reference to its meaning Togetherwe're building better places
now requires a compelling justification."19 that bring the world closer.
It's worth noting that the Seventh Circuit did not decide
whether the Springfield ordinance would pass muster under
a strict scrutiny analysis,only that it was subject to strict
scrutiny as a content-based regulation of speech.This was due - _
to the parties'agreement that the ordinance would"stand or
[fall] on the answer to the question whether it is a form of =- -_-
content discrimination."20 The court made it explicitly clear
that,under Reed,a panhandling ordinance regulating the topic
of"requesting immediate donations of money"is a content-
based regulation of speech and must survive strict scrutiny
to be constitutional. Seventh Circuit precedents are binding
on Wisconsin.Accordingly,Wisconsin municipalities should
proceed with caution where panhandling ordinances are
concerned as strict scrutiny most often signals a law will fail.
The Supreme Court has not decided a panhandling case
since Reed,although other courts have addressed panhandling 1
ordinances in its wake.In McLaughlin v. City ofLowell,the
U.S.District Court for Massachusetts examined an ordinance
aimed to prohibit panhandling in certain downtown locations
as well as"aggressive"panhandling techniques." Like the
Seventh Circuit in Norton,the district court found the
ordinance prohibiting panhandling in downtown areas to be
content-based.22 The ordinance failed the court's subsequent
strict scrutiny analysis.The preamble to Lowell's ordinance
laid out the city's purpose for enactment:protecting tourism
and its"compelling interest in providing a safe,pleasant
environment. . . ."Z3 However,the court found the purpose,
while important,did not rise to the level of a compelling
government interest."
► .
.......................................... _ ......._p.2.0
SEH
16.Norton,806 F.3d at 411.
17.Id.at 413. Engineers Architects Planners Scientists
18.Id.at 412.
19.Id.at 413.
20.Id.
21.McLaughlin v.City of Lowell,140 F.supp.3d 177,181-82(D.Mass.2015). Building
I I ' Better
, , World
I r All I
22.Id.at 185.
f Use
23.Id.at 188.
24.Id.at 188-190. •
The Municipality March 2019 19
The court likewise found the aggressive which the court separated into three not increase liability for criminal activity
panhandling ordinance to be content- categories:duplicative provisions, that is connected with protected speech.21
based,noting that the ordinance coercive behaviors,and location-based
distinguished between conduct prohibitions."Evaluating the first Next the court turned to the second
deemed aggressive based on the actor's category,the court focused on the category of actions,those that,while not
accompanying speech,illustrating that ordinance's prohibition of panhandling criminal constituted coercive behavior-
a person following another while asking while using fighting words.The court Examples included continuing to
panhandle from an individual who gave a
for a donation would be considered noted that certain behavior prohibited
pan
handling,anhandling'but that a person under the ordinance could alreadynegative response and following a person
following another while asking fora be prosecuted using other existingg while intending to ask them for money.'o
petition signature would be permissible." ordinances—e.g.,panhandling behavior The court concluded prohibiting
The aggressive panhandling ordinance that also constitutes assault and batter these actions was more restrictive than
passed he first prong of the strict scrutiny and that the City had not demonstrated necessary.31 There may be benign reasons
analysis—it was enacted to further the that public safety required harsher a panhandler might follow another
ci ellin interest in ublic safe unishments for anhandlers en in individual—e.g.,providing a longer
tys com p g p safety
p p ga g g explanation for his or her request for
—and the court next turned to whether it in assault and battery than others
used the least restrictive means to achieve committing the same crime.21 Moreover, donation and walking alongside a person
that interest.2F The ordinance identified the court stated that an ordinance should While doing so.The court stated that
10 actions as"aggressive panhandling," "giving panhandlers only one chance
to convey their message was more
.._.........._.........._.........._........................................................................................................................................
25.Id.at 191.
26.Id. ► p.21
27.Id.at 192-96.
28.Id.at 192-93.
29.Id.at 193.
30.Id.
31.Id.at 193-94.
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20 The Municipality March 2019
restrictive than necessary."32 The third Cutting,the First Circuit considered found the ordinance to be geographically
category was also more restrictive than an ordinance prohibiting standing(or overinclusive and banning more speech
necessary in prohibiting panhandling sitting) in traffic medians unless doing than necessary to accomplish the city's
in certain locations.33 Certain locations, so to cross a street.36 Noting that other interest in promoting public safety."
like bus stops,were not tailored towards circuit courts have considered medians to The ordinance banned standing in all
public safety while other locations, be public fora and finding the ordinance city medians,despite evidence that
such as public restrooms,were aimed at content-neutral,the court examined the suggested only a handful of medians
public safety but were over-restrictive ordinance to determine whether it was presented a significant safety concern.'O
because they could have allowed passive narrowly tailored to serve a significant It banned expressive activity that would
panhandling through signs without government interest,while leaving not necessarily pose a safety risk-e.g.,
a significant cost to public safety.34 open ample alternative channels for individuals holding campaign signs while
Ultimately,both the location-based and communication.37 In other words,to be standing in medians."Moreover,the city
aggressive panhandling ordinances failed. constitutional,the ordinance must not did not demonstrate that less restrictive
Another post-Reed panhandling case
burden more speech than necessary to means would not have achieved its
further the city's interest."Citing several purpose.42 The court pointed out,
F Cutting v. City Court
Portland out of the reasons for its conclusion the court amongother thins that the citymight
First Circuit Court of Appeals.35 In things,
g
...........................I............................_.........._.........._................................................................................................
32.Id.at 194.
33.Id.at 195.
34.Id.at 195-96. p.22
35.Cutting v.City of Portland,802 F.3d 79(1st Cir.2015).
36.Id.at 83.
37.Id.at 84.
38.Id.at 86.
39.Id.at 89-91.
40.Id.at 89-90.
41.Id.at 90.
42.Id.at 91.
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The Municipality March 2019 21
have restricted the ban to only those interest in public safety as the purpose About the Author:
dangerous medians or limited activity for an aggressive panhandling ordinance_ Maria Davis is the League's Assistant
on medians at night or in inclement However,such an ordinance must pass a Legal Counsel. She provides legal
weather. strict scrutiny analysis to survive,which is assistance to municipal attorneys and
These cases highlight several issues no easy feat.Additionally, Cutting implies officials through telephone inquiries,
municipalities should be aware of that a municipality wishing to prohibit written opinions and briefs,workshop
standing in medians should carefully presentations,and published articles.She
when contemplating a panhandling p p
establish its purpose in the ordinance
ordinance or other ordinance that may narrowly tailor the effect of the ordinance also assists in writing League handbooks
have an effect of speech,such as a ban and planning the Municipal Attorney's
to that purpose,and ensure that alternate
on standing in certain locations.44 In Institute.Maria joined the League staff
light of Reed and Norton,an ordinance channels of communication remain open. in 2018 after working in the City of
likely be held unconstitutional.directly prohibiting panhandling—i.e., An ordinance failing t doutionn al.may very Madison's Office of Real Estate Services
content based—is likely to fail under a upon graduating law school in 2015.
strict scrutiny analysis.McLaughlin and Licensing&Regulation 399 Contact Maria at mdavis@lwm-info.org
Cutting,while not binding in Wisconsin,
indicate it may be possible fora Ordinances&Resolutions 511
municipality to demonstrate a compelling
..................................................................................................................................................................................
43.Id.at 92.
44.For members of the International Municipal Lawyers Association,a Model Panhandling Ordinance is available in the IMLA's resource library.
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