Panhandling?

Josh Kobrin, J., concurring

The ordinance in question presents a variety of clauses involving the actions of the homeless, or simply panhandlers, within the public forum. These actions occur particularly in the public forum most accessible and important in the modern era: the sidewalk. Based on this premise, and other arguments, Mr. Jones' conviction is reversed and four out of the five clauses of the ordinance are deemed unconstitutional.

Over the past decade the problem of homelessness has escalated in cities to such an extreme that many urban governments have tried to try to curb the disturbing actions of people forced into the streets. As well as begging, these individuals often have no choice but to perform functions in the streets that would normally occur within the home (i.e. sleeping). The disruption caused by homeless people's existence is indisputable: they disturb, often annoy and make many city residents uncomfortable. Their freedom to panhandle within reason, however, has definitively been found protectable under the First Amendment. The streets "have immemorially been held in trust for the use of the public" Hague. Additionally, while the content of the speech requests money it cannot be classified as charity because money is raised primarily for the individual panhandler's well being, not a fund or established organization. The communication is also not commercial speech because it in no way involves the marketplace of "products or of services" Bigelow. The actions of panhandlers do, however, make clear social statements and when expressed appropriately, do not fall under the categories of "lewd and obscene, the profane, libelous" and "insulting or fighting words" Chaplinsky. In numerous circuit courts and district courts, begging for money in public ways has been deemed protectable under the First Amendment. This court adamantly agrees with these decisions.

The current ordinances, however, mold specifications as to how these functions may be carried out that place further burdens on those that are already down and out. The appellant, found to be in violation of these ordinances, was certainly an annoyance to those he panhandled for money. Protecting citizens from annoyance, however, is not a powerful enough reason to restrict speech in the public forum, as it has been found that "the First Amendment is often inconvenient. But. . . inconvenience does not absolve the government of its obligation to tolerate speech" ISKON. The question is whether the appellant is taking his First Amendment rights to such aggressive or threatening extremes that the constitution protects those he is confronting, rather than him.

In this case, Mr. Jones does not at any point offend those whom he panhandles, nor does he assault them verbally or otherwise. While he does follow them, his actions remain within the restraint of a city block, proving that they are in no way a captive audience. Once the students left the block Mr. Jones refrained from bothering them. The question remains whether Mr. Jone's aggressive manner, or any panhandler's for that matter, were actions threatening enough to deny First Amendment rights.

According to the statute, it is a crime to panhandle in a "coercive, threatening, or aggressive manner." While threatening behavior in a public forum has been found not to be protected, there is great ambiguity in the words "coercive" and "aggressive." Coercive and aggressive are vague words, especially when dealing with a public communication. Are loud words by nature aggressive? If an individual feels that their personal space has been invaded can the speech be defined as aggressive? Furthermore, does persistence of communication, as with Mr. Jones, make the speech "coercive" or "aggressive?" Can usually non-aggressive words be altered in tone in order to carry aggressive meaning? These questions prove the ambiguity of such laws. Additionally, "the claim to be preventing coercion is weak to start with. While a solicitor can be insistent, a pedestrian on the street or airport concourse can simply walk away or walk on" ISKON. Furthermore, the vagueness of Berkeley's laws leave the definitions of such words at the discretion of law enforcement. Not likely to concern themselves with the First Amendment rights of panhandlers, the laws leave open the opportunity for clear violations of rights when an officer is free to decide when a beggar has become "aggressive." In this manner the police become the unquestionable censors of speech.

The purpose of these ordinances appears noble: to regulate what consistently proves to be an annoying and disturbing form of speech. The laws aim to prevent greater crimes which is clear from the clause preventing panhandling after dark. Despite this, the ordinances are a clear attempt to control the actions of the homeless and bring up the issue of when regulation is, in effect, prohibition.

The court finds not only the ambiguity within Clause I in violation but also questions the intent of allowing panhandlers their First Amendment rights only during daylight hours. The city may argue that an ordinance relating to noise after dark is based on the same premise. Noise level, however, is a noncontent element of speech RAV. Under such laws the same speech may continue after dark at a quieter level. Making all panhandling speech a crime simply because other crimes increase after dark suggests that Berkeley's law is content based. The major complaint against panhandlers is often from store owners, who claim panhandlers hurt business. At night this is not the case, as stores are usually closed. Some may claim that in addition to the annoyance and uneasiness experienced during daylight hours, pedestrians may also fear panhandlers more at night. This fear, however, is also not adequate reasoning to deny First Amendment rights. Darkness alone cannot make a legal activity wholly illegal.

Further stipulations in the ordinance make it illegal to "solicit money or sit or lie within six feet of any building between 6 a.m. and midnight." This tampering with the sidewalk as a public forum sets an awful precedence. Chopping the sidewalk up into zones which can be utilized for free speech only between certain hours places the public forum in danger of being manipulated for different interests. Do the owners of the building control the events occurring within this six feet of sidewalk? Is it the city's property? What is the point of the sidewalk being a public forum if it can be narrowed by the government for convenience? Can further laws prevent panhandlers from begging on corners where people have no choice but to cross the street at lights? It has also been pointed out that this law extends to people who step outside their place of business during lunch breaks and lean against a building to drink coffee, eat or even to smoke. The court doubts that these people would be treated equally in the eyes of the law for their existence does not send a controversial message. Additionally, those who sit with signs or a container hoping for contributions act exactly as the law against coercive or aggressive panhandling would have them act. They passively relate their message and need for help without bothering passerbys.

The other provisions prevent panhandling within 25 feet of automatic teller machines and at outdoor cafes. The fact that a teller machine provides money renders no reason to keep panhandlers at a distance from it. To do so is to unfairly assume that the beggar will engage in criminal behavior simply because the location involves money. From this perspective laws could prevent beggars from panhandling to people entering fancy restaurant or expensive stores. It is clear that these individuals also have money, possibly more than someone at an ATM. Continuing this logic, beggars could be prevented from panhandling to someone involved in a financial transaction on the street, such as buying food from a vendor. The only "significant governmental interest" the city provides for these restrictions is that "face-to-face" solicitation can result in duress and that seeing the effects of urban blight may threaten citizens Ward. By protecting only ATM users because they definitively have money makes the law inconsistent, as there are other pedestrians who also definitively have money. In many ways the law incriminates itself, pointing to the fact that the content of the speech (asking for money) is the sole reason for the restriction. By preventing panhandlers from soliciting in business areas where people have money, or at ATM machines where people obtain money, the content of the speech, the need for money, is obviously the issue in regulation. The city contends that the content of the speech involves why the solicitor is requesting money (i.e.. panhandling vs. charity). By making this clarification, Berkeley claims that the speech is content neutral because it would prevent someone requesting money for Greenpeace from soliciting near an ATM as well as a homeless man requesting money for his own purposes. The content, however, is not whom the solicitor is representing, but simply that they are requesting money to begin with. As such, the restriction is content based for both a panhandler and a charity.

The only clause that has clear backing is preventing begging at sidewalk cafes. The establishments, in receiving permission to move their seating to the outdoors, allow for a captive audience that cannot be expected to leave the restaurant to avoid a panhandler. In addition, only a small portion of the sidewalk is denied for public purposes by the cafe and any panhandler who begs from those seated at a sidewalk cafe takes clear advantage of their captivity.

The major flaw of unconstitutionality in these ordinances seems to be the government's desire to make the city a more comfortable place by restricting panhandlers freedom of speech. Panhandlers, however, are a part of the city and their need to beg makes strong political and social statements. While some panhandlers use their funds to feed homeless people or even better themselves, the money contributed cannot be clearly defined as commercial or charitable and should therefore fall under the restrictions of neither form of speech. While these ordinances do not attempt to ban panhandlers speech as other laws have, they take great strides in limiting that speech purely on the basis of content. This is definitively unconstitutional. The government can only provide restrictions if they "are justified without reference to the content of the speech" Ward.

It may be the opinion of many that panhandling speech serves no purpose for society and should therefore not be protected, particularly when it bothers so many individuals. People who panhandle, some will claim, do not do so in order discuss ideas or spread information, but merely to stay alive or support addictive habits. Tolerance toward these unfortunate individuals, however, is necessary in order to remain an open minded society. In addition, panhandlers send a message about the state of a city and the problems of economic inequality. The city's theory that panhandlers could communicate their message by handing out leaflets about homelessness strongly diminishes the importance of their need to request money, and would prove rather unfeasible to the average homeless individual. That people feel the need to beg makes a strong, though negative, statement about a city and society at large. In addition, a human being is not comparable to a movie theater in that he can be zoned in order to protect citizens from his existence. Doing so segregates members of society simply because their presence is believed to have adverse effects. As opposed to trying to brush the homeless under the carpet, cities should actively try to combat the ills that cause homelessness and force citizens to panhandle. Many cities, as opposed to making panhandling illegal, have created programs to educate residents on how to deal with beggars and to make panhandlers aware of available resources. Successes of such programs in Studio City and elsewhere prove that other options exist. Furthermore they destroy the argument that Berkeley ordinance is necessary to prevent fraud, crime, and undue annoyance. These vices can, and should, be prevented, but not at the cost of the rights of homeless people. The Court makes clear in Shaumburg that the goals of crime prevention can often "be sufficiently served by measures less destructive of First Amendment interests" [1980]. Other measures are obviously in order.

I would reverse.

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