Here’s your sign

Rogers: Hold a sign all day, but don’t step into street

Virtually everyone, we think, would prefer a world in which there was no panhandling. That includes the panhandlers. But for a thousand reasons, the act of begging for money isn’t going anywhere. The poor will always be with us, we’re told on good authority. As fellow humans on the journey of life, they deserve compassion. Let those of us who have never faced such dire circumstances be thankful.

Communities, however, must face situations a little differently than individuals can. A single panhandler asking a passer-by for help isn’t too serious a matter, but is there a local government interest if panhandling becomes a nuisance? What if it takes root in a particular part of town? For example, is it reasonable to expect some concern and possibly action from local leaders if panhandlers en masse descend on the Farmers’ Market every Saturday morning in Fayetteville? Or what if they became a mainstay of First Fridays on the Bentonville Square? Are towns that spend millions trying to attract visitors supposed to just sit still while panhandlers create such situations?

Some advocates say yes, that protecting the individual rights of Americans (yes, panhandlers are Americans, too) is more important than community discomfort. Community leaders, however, hear from constituents, the folks they see at the barbershop or at the mall. It’s entirely understandable they might want to set limits on behaviors that can be disruptive. While constitutionality may not be their first concern, it eventually must become a concern. Government leaders draft ordinances — it’s what they do — that in the best light attempt to balance the needs of the many and the needs of the one, to borrow a phrase from a certain Vulcan.

Sometimes cities get it right. Sometimes they don’t. And it’s not unusual for a court case to be involved in determining what “right” looks like.

The city of Rogers last week ditched its solicitation ordinance, which had come under legal attack by the American Civil Liberties Union. The organization sued because of the ordinance’s impact on panhandlers, who in other cities have won some recent federal court cases that recognized First Amendment protections for their sign-holding activities. In essence, a man with a piece of cardboard saying “God Bless. Homeless. Anything will help” is at least as protected under our Constitution as high school cheerleader standing streetside holding a “Free Car Wash” sign for a fundraiser. Perhaps even more so.

Rogers Mayor Greg Hines and the City Council don’t care much for being sued, naturally. But in this case, they apparently recognized some shortcomings in their approach to panhandlers, shortcomings they chose not to defend in court.

But that doesn’t mean it’s a free-for-all now for panhandlers in Rogers. On the same night, the City Council approved an ordinance that prohibits anyone from approaching an occupied vehicle “in operation” on a public street. From a legal perspective, the ordinance would appear to have avoided regulation of “solicitations” and instead relies on traffic safety. In short, a guy can stand on public property all day long holding a sign, but the moment he approaches an occupied vehicle operating on a public street — such as one in which a passenger rolls a window down to hand him $5 — he’s in violation of the city’s traffic safety measure.

Bettina Brownstein, a lawyer for the ACLU, said last week the new ordinance still goes too far. The act of panhandling is the protected constitutional behavior, she said, not just the display of a sign. “It is overbroad, overly restrictive in regard to the First Amendment,” she said.

Jennifer Waymack, senior staff attorney for Mayor Hines and the city, says the act of approaching a vehicle on a public street is what’s being regulated. That goes for everyone, whether it’s someone asking for directions, a political candidate asking for votes or a panhandler asking for money. Motorists are welcome to pull off the public street if they want to give money to a panhandler, and pedestrians on the sidewalk can certainly do so, she said.

We ran Rogers’ legal approach past an attorney involved in municipal law in another city. He said it was an interesting approach. He also said he was more than willing to let Rogers be a test case in the courts to determine whether it passes constitutional muster.

And sometimes, that’s what it takes to clearly define the boundaries between individual rights and efforts by government to restrict them. Mayor Hines last week explained the ACLU wanted an exception in the ordinance that specifically allows for panhandling. “That’s just not going to happen,” he said.

We have no doubt he’s representing his constituents with that comment.

We discourage lawmakers from passing laws they have every reason to believe will be ruled unconstitutional. But Rogers isn’t purposely stepping over the line; they’re trying to define it more clearly. Cities across our region — indeed, across the country — need that clarity.

In A Guide to Regulating Panhandling by the Criminal Justice Legal Foundation, author Kent S. Scheidegger wrote “As a result of a series of court cases and various interest group pressures, the police are formally or informally instructed to treat a community as an assemblage of individuals bearing rights rather than as a group of neighbors sharing interests.”

In fact, Rogers and other communities are both. With the help of the courts, perhaps there is hope that the needs of all can be properly balanced.

What Rogers appears to be saying is it’s ready to act constitutionally, but it’s an open question today as to what that means in regard to panhandlers and street safety. City leaders aren’t ready, it appears, to just toss aside any effort to maintain a standard for public conduct and public safety because the ACLU says so.

Stay tuned. We have a feeling this new ordinance is just begging for a legal challenge.