When is panhandling free speech? At least for now, Andrew Michael Rodgers and Glenn Dilbeck, both 53, are free to ply their trade, to wit, begging in heavy traffic. Between dodging cars and cops, there's no doubting their courage or the moving target they may present to motorists.
There are more legal questions here than Gentle Reader might be able to shake a stick at. But it was all pretty simple to His Honor Billy Roy Wilson when he issued a preliminary injunction against any effort on the state's part to chase them out of the public's right-of-way. His Honor ruled that, at least for the time being, Messrs. Rodgers and Dilbeck were well within their rights to keep badgering the public.
More litigation doubtless will follow as the state's attorney general, the American Civil Liberties Union and kibitzers galore muscle in on this act. It's a great legal show even if it isn't a second Marbury v. Madison--not yet.
From his perch on the federal bench, Judge Wilson could see that the state's law against begging under these dangerous circumstances is "plainly unconstitutional." His law might have been debatable, but the judge's eyesight must have been 20-20 to spot so clear a conclusion amidst all the confusion down in the valley.
The essence of His Honor's current opinion on this case and can of worms would seem to be: By its content ye shall know the difference between just impeding traffic and exercising a sacred constitutional right. "I have no doubt," conceded the judge at the very start of his opinion, "that holding a sign asking for gifts or charity could 'create a traffic hazard or impediment' ... and, to lesser degree of certainty, that it is possible that holding a sign asking for gifts or charity might cause others to feel threatened, harassed, or alarmed."
But a fast start on a muddy track doesn't necessarily lead to a winning finish. Because in ruling against this section of a state law, the judge wound up barely hobbling across the finish line when he concluded: "Section 5-71-213 (a) (3) restricts only a certain species of speech (asking for gifts or charity.) Thus, if two people created a traffic hazard or impediment by holding signs, but one asks passers-by to vote for a political candidate and the other asks passers-by to give to give to a charity, Section 5-71-213(a)(3) would apply only to the person whose signs ask passers-by to give to a charity. Accordingly, the section is a content-based restriction of constitutionally protected speech." Hesto-presto, what was only a nuisance became a speech. The wonders of the legal or anyway legalistic mind never cease.
His Honor went on to say that it isn't a court's proper function to tell the state how to rewrite its laws or a section thereof in order to bring it up to his exacting standards, which a mere layman might assume he'd just done. The annals of the law can get fairly confusing when left in the hands of a judge who believes in second-guessing the judgment of police officers on the spot, which in this case was heavily trafficked.
Now all sides have agreed to put both the state law and Judge Wilson's (mis)interpretation of its meaning on hold until a federal appellate court gets its swings at it. But back then, Judge Wilson saw no need for the state or community to use its police force to ensure the safety of its citizens if it meant giving that need precedence over a citizen's right to beg in the streets. Anatole France put it more eloquently:
"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." But the judge has his own way with words and might still have an opportunity to employ it as this case goes on and on with no end in sight.
Paul Greenberg is the Pulitzer Prize-winning editorial writer and columnist for the Arkansas Democrat-Gazette.
Editorial on 10/15/2017