Here’s your sign

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

Northwest Arkansas Democrat-Gazette - - EDITORIAL PAGE -

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.

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