Yet another effort to devise a ban on begging that meets constitutional scrutiny has been struck down by a federal judge in Arkansas.
The latest effort -- a Hot Springs ordinance that outlaws physical interactions between pedestrians and occupants of vehicles -- got the ax Monday from U.S. District Judge Robert T. Dawson of Fort Smith, in the Western District of Arkansas.
Dawson found that the city ordinance was a content-based regulation of speech, in violation of the First Amendment, much in the way that U.S. District Judge Billy Roy Wilson of Little Rock, in the Eastern District, found that a 2017 state law unconstitutionally singled out and prohibited a certain type of speech -- begging.
Wilson's ruling on Sept. 27, 2017, echoed a similar ruling he had made on Nov. 22, 2016, striking down the previous version of the law, which had been in place for 30 years.
In all three cases brought by the American Civil Liberties Union of Arkansas on behalf of panhandlers, there was a common plaintiff: Michael Andrew Rodgers. In the Eastern District case, Rodgers and Glenn Dilbeck, both 54, jointly challenged both the original law and its 2017 legislative rewrite. In the Western District case, Rodgers was joined by Todd Reid, a motorist who said he wanted to continue giving to panhandlers. The city said that both motorists and pedestrians who "interact physically" could be cited under the ordinance.
Wilson's most recent order -- a preliminary injunction blocking the state from enforcing the law -- remains on appeal to the 8th U.S. Circuit Court of Appeals in St. Louis. Until the 8th Circuit rules, the case cannot move forward to the next stage of litigation, in which the ACLU wants Wilson to enact a permanent injunction.
In a 20-page ruling filed Monday, Dawson imposed a permanent injunction on the most recent version of the Hot Springs ordinance, which the city's Board of Directors adopted Dec. 5, 2017.
The ACLU first sued over the Hot Springs ordinance in June 2017, to stop enforcement of a 2016 version that was adopted in response to an increase in panhandling at busy intersections. That version, which the city called "an absolute ban on solicitation," made it a crime for anyone to enter any portion of a public street, or approach a vehicle in any portion of a public street, for the purpose of soliciting anything from the occupant of a vehicle.
The ACLU's challenge to the 2016 ordinance was put on hold after the city repealed the ordinance in August 2017. But after the new version of the ordinance, this one called "An Ordinance to Protect Public Safety Within the Roadways and Public Streets of the City of Hot Springs," went into effect Jan. 5, 2018, the ACLU reinstated the lawsuit, saying the new version was also unacceptable. Meanwhile, the city agreed not to enforce the ordinance while the legal challenge was pending.
Rodgers, a self-described beggar and panhandler, is a disabled veteran who says he begs in order to have enough money to live on. He has acknowledged begging in Hot Springs for several years, and has been jailed for begging alongside city roadways.
He challenged the ordinance that "prohibits physical interaction between the occupant of a motor vehicle and a pedestrian while the motor vehicle is in operation on a public roadway unless the vehicle is lawfully parked," alleging it was crafted with discriminatory intent against beggars and panhandlers.
In granting Rodgers' motion for summary judgment -- a ruling on legal arguments alone -- Dawson noted that the city hasn't refuted Rodgers' contention that he was previously convicted in the city for begging and that he has been told he would be jailed if he "dared" violate the new ordinance, giving him legal standing to pursue the case.
Dawson noted that the U.S. Supreme Court has held that no government has the power to restrict expression because of its message, its ideas, its subject matter or its content, and that laws that stifle speech on account of its message "pose the inherent risk that the government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information."
While the city argued that the ordinance "does not include the exercise of protected free speech or expression by any person," Dawson said, "the ordinance distinguishes messages between pedestrians and vehicle occupants attempting to communicate and subjects these individuals to differential treatment."
The city argued that the ordinance doesn't target speech, because it doesn't prohibit anyone from entering a roadway to speak, and only prohibits people from interacting with vehicles and pedestrians in ways that pose traffic safety concerns, regardless of whether they are speaking.
But, Dawson said, "The Court is unpersuaded by the city's effort to separate physical interaction from its expressive intent or message as a means of avoiding conflict with the First Amendment. While it is true that the right to free speech does not include all conduct that is connected to speech, when it comes to physical interaction between humans, the act itself is often both the message and the conduct. In many instances the two are so intertwined it is not possible to separate the speech and non-speech elements. All people everywhere routinely communicate non-verbal messages through physical interaction, often without noticing it."
"Although the effort by the City to enact the ordinance does not meet constitutional requirements, the City is not to be criticized for its attempt to protect the safety of its citizens and those who use the streets," Dawson said, noting that the city does have a "compelling interest" in promoting roadway safety. But, he said, the ordinance isn't "narrowly tailored," as the constitution requires, to address those interests.
"The ordinance applies only to certain pedestrians, and yet no one is safe in a roadway no matter the reason for being there ...," he said. "By singling out only certain types of messages, the city has fashioned a 'fit' that is too small to cover its legitimate and compelling interest."
The judge also found the ordinance to be "geographically over-inclusive," pertaining to all streets and roadways in the city limits, even though they don't all present the same level of risk to pedestrians or motorists.
Metro on 04/02/2019