Panhandling?

Kara O'Brien, J., dissenting

The Court thoroughly dismisses the categories of charitable solicitation and commercial speech, stating that they are categories under which panhandling cannot be protected. I heartily agree with this reasoning. However, I find fault with the Court’s argument that the Berkeley ordinance regulating solicitation and begging is in violation of the First Amendment.

It should first be noted that the Berkeley ordinance cannot be taken on face value alone, though the Court does so. Berkeley legislators were well aware of the homelessness problem among panhandlers, and passed legislation that increased spending on homeless services alongside the ordinance in question. This was a clear-cut attempt to provide panhandlers with an alternative to begging money.

I believe that the ordinance is indeed within constitutional bounds because it falls under the time, place, and manner regulations upheld by the Court as early as Cantwell v. Connecticut (1940): “It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment.” However, since time, place, and manner cases are not easily categorized as “good” or “bad,” that is, protected or unprotected, speech, a careful weighing of the harms against the values of panhandling becomes necessary.

As a direct advance on an individual’s personal space, panhandling presents several potential harms. Congestion of the streets and personal nuisance to individual citizens alone do not outweigh the guarantees of free speech. Nor does the potential loss in business a store owner might experience if money is being solicited in front of her store weigh heavily.

The encroachment on personal space, however, presents a major harm to the public as a whole. The harm at hand is urban blight, and the State should not only have the right, but also the duty, to prevent such harm. In International Society for Krishna Consciousness, Inc. (ISKCON) v. Lee (1992), the Court ruled that “face-to-face solicitation presents the risks of duress that are an appropriate target of regulation,” stating that the “skillful solicitor” could “target the most vulnerable,...who (could not) avoid the solicitation.” By prohibiting “soliciting after dark, within ten feet of automatic teller machines, and at outdoor cafes,” as well as begging in a manner that “coerces, threatens, hounds, or intimidates,” the Berkeley ordinance seems to have been written with the personal safety of citizens in mind. For instance, a man running after a group of students, shouting repeatedly after them for money and food, is threatening, or at the very least, intimidating, to the safety of the students. A man putting recently withdrawn money into his wallet at an ATM is likely to be hounded by a panhandler, since the panhandler knows that the man does indeed have money.

In Renton v. Playtime Theatres, Inc. (1986), the Court upheld an ordinance that prohibited any "adult motion picture theater" from being located within 1,000 feet of any “residential zone, single- or multiple-family dwelling, church, or park,” and within one mile of any school. Supported by Seattle research that showed “the adverse effects of the presence of adult motion picture theaters on neighborhood children and community improvement efforts,” Renton proved that the ordinance was necessary in the protection of their city. The Berkeley ordinance serves the same pursuit: preventing its citizens from feeling threatened by the ill effects of urban blight. For instance, by restricting begging that “coerces, threatens, hounds, or intimidates,” the ordinance prevents the aforementioned man running after the students from making an assault-like scene. The panhandling restriction that prohibits the solicitation of money from the man in front of the ATM allows the ordinance to prevent an action that could be seen from afar as a mugging. For the city, the ordinance serves as a prior restraint against the consequences of urban decay.

These harms must be weighed against the values and rights involved in panhandling. I find any such value scarce and without merit. Aside from the immediate interest of the panhandler, there is no public interest in panhandling. A certain degree of tolerance should be held to support ideas lacking majority support in the public forum, but when weighed against the potential harms, this value of tolerance is cut down.

Strengthening this are the alternatives provided by the city of Berkeley by means of the legislation granting extra spending on homeless services. Shelters, soup kitchens, and other such programs furnish some of the panhandlers with an alternative place to seek help. Rather than sleeping out in the streets during the day, the homeless are provided with shelter, and rather than begging for money or food, they are provided with a hearty, free meal. Because the panhandler has the alternative to take charity, he has the means to preserve the “emotive value” of panhandling the Court esteems: He is not forced by his circumstances to beg, and might even escape with more of his personal dignity. The panhandler also has the alternatives of passing out leaflets about homelessness on the streets, and with speaking to passers-by about the issues. These options will also uphold his dignity, while maintaining the panhandler’s right to express any social or political statement about homelessness.

The ordinance, in restricting “place” rather than speech, offers alternatives not just to the panhandlers, but also to the citizens. From 6 a.m. to midnight, panhandlers are free to ask for spare change or other assistance in places such as the park on Prospect Avenue, saving that it is not said in a coercive, threatening, intimidating, or hounding manner. This is a street busy with pedestrians, so the panhandler is not entirely robbed of an audience. But by keeping solicitors away from buildings, the ordinance provides pedestrians with alternate routes that allow them to avoid panhandlers. Customers will not be deterred by panhandlers from entering local businesses. As “commercial enterprises,” businesses must “provide services attractive to the marketplace.” (ISKCON)

Along this vein of protecting businesses lies the question of whether advocacy-oriented solicitation would be permitted under this ordinance. This solicitation generally requires a permit issued by the city, and includes regulations of time, place, and manner. However, advocacy-oriented solicitation can also be struck down during business hours. If, for instance, Jones had been asking for spare change for Greenpeace in front of the restaurant, he could be arrested under the ordinance. He, like panhandlers, might also be deterring customers, particularly if he is soliciting in an abrasive, threatening manner. Thus, the ordinance does not regulate based on content; it simply attempts to regulate the time, manner, and place of panhandling, while keeping public and commercial welfare in mind as well.

Though the law definitely provides charity service alternatives to those who need (and want) it, we cannot assume that all panhandlers are homeless. Had it been passed without the charity spending increase, the Berkeley ordinance might have seemed to be directed solely at these “hard-core” panhandlers. These people panhandle regardless of the alternatives provided by the city. By regulating the “hard-core” panhandlers, the government is taking a stance that their actions are unacceptable, and will not be advocated by the government. Without the regulation, there would be a silence that would be as good as consent and support on these issues.

I doubt that there are alternative actions the government can take against these people. Further increasing spending on homeless services would be ineffective, as the hard-core panhandlers are simply not interested in them. With the ordinance in question, the city of Berkeley manages to strike at the issue of harassing panhandling while still providing those that might otherwise depend on it with viable alternatives.

The Court also argues that the ordinance contains vagueness problems, which might be reason enough to end regulation attempts in this area. Miller. I see no such vagueness. Time and place are clearly specified: no soliciting “after dark,” and not within 10 feet of an ATM machine, for example. Manner, though slightly subjective, is also laid out: if the solicitation “coerces, threatens, hounds, or intimidates,” it is unlawful.

The question that arises from this is, who decides what “coerces, threatens, hounds, or intimidates”? I feel this decision should be based on the “contemporary community standards” referred to in Roth v. United States (1957), since the community as a whole is, in effect, the victim. Though naturally different people will have different moral standards, community members should be made aware of the laws that are written to protect them. In this case, the words of the Berkeley law should serve as a basis for reasonable judgment on what is coercive, threatening, hounding, or intimidating to the members of the community.

Finally, the ordinance is within constitutional bounds because it seeks to stop what has become a serious civic problem in Berkeley. The citizens and city officials see the seriousness of the problem firsthand; we do not. Thus, the Court cannot create a national standard of what is acceptable in terms of panhandling, but should uphold constitutional guidelines when judging restrictions of speech.

In her concurring opinion in ISKCON, Justice O’Connor discussed the factor of “reasonableness” in governmental restriction on speech. She writes that the “reasonableness inquiry is not whether the restrictions on speech are consistent with preserving the property,’ but whether they are reasonably related to maintaining the multipurpose environment.” Because the Berkeley ordinance falls under this reasonableness inquiry, it should be upheld. The “multipurpose environment” allows pedestrians to get to and from their destinations and businesses to conduct business without the nuisance and threat of panhandling. The speech of panhandlers, though relocated away from buildings, and met with time restraints, is still allowed under this ordinance. As Justice Marshall put it, “Our cases make...clear..., that reasonable 'time, place, and manner’ regulations may be necessary to further significant governmental interests, and are permitted.” Grayned v. Rockford (1972). Thus, Berkeley’s panhandling restraints of time, place, and manner in the legislative effort to protect the citizenry are protected. It is on these grounds that

I dissent.

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