Re­venge of the pan­han­dlers

A Supreme Court move bol­sters the rights of pan­han­dlers “You can­not de­clare a down­town zone a no-free-speech zone”

Bloomberg Businessweek (Asia) - - CONTENTS - Tim Jones, with Greg Stohr

Don Nor­ton and his wife, Karen Ot­ter­son, have been ar­rested about 50 times while pan­han­dling in down­town Spring­field, Ill., over the past eight years. In 2013 they sued Spring­field for in­fring­ing on their First Amend­ment rights to free­dom of speech. The city had passed an or­di­nance pro­hibit­ing ver­bal re­quests for money in the city’s his­toric dis­trict, just a short walk from Abra­ham Lin­coln’s home, tomb, and pres­i­den­tial li­brary. A fed­eral ap­peals court took Nor­ton and Ot­ter­son’s

side and over­turned the ban, and in Fe­bru­ary the U.S. Supreme Court re­fused to hear the city’s ap­peal. “I kind of feel priv­i­leged that I was able to help peo­ple have the right to do this,” says Nor­ton, 55, who car­ries a card­board sign ask­ing for help.

His vic­tory came thanks to a 2015 rul­ing by the Supreme Court in which the jus­tices agreed with the ar­gu­ments of Ari­zona pas­tor Clyde Reed, who wanted to put up signs di­rect­ing peo­ple to Sun­day ser­vices at his church. He chal­lenged a lo­cal or­di­nance that put strict time lim­its on signs pro­vid­ing di­rec­tions. Writ­ing for the court, Jus­tice Clarence Thomas said the law treated di­rec­tional signs dif­fer­ently from other dis­plays, such as those for po­lit­i­cal can­di­dates. Un­der pre­vi­ous Supreme Court rul­ings, re­stric­tions on spe­cific types of speech were con­sid­ered valid only if they were nar­rowly tai­lored to serve a com­pelling state in­ter­est.

Lower courts have taken Thomas’s rea­son­ing to mean that anti-pan­han­dling or­di­nances un­fairly sup­press cer­tain kinds of speech. They’ve over­turned anti-beg­ging or­di­nances as well as oth­ers out­law­ing bal­lot-box self­ies and robo­calls for po­lit­i­cal cam­paigns. “Any law distin­guish­ing one kind of speech from an­other by ref­er­ence to its mean­ing now re­quires a com­pelling jus­ti­fi­ca­tion,” Frank Easter­brook, a fed­eral ap­peals court judge, wrote in the Spring­field case.

Bans in Worces­ter and Lowell, Mass., have been over­turned by lower courts, as have oth­ers in Grand Junc­tion, Colo., and Portland, Maine. Sim­i­lar or­di­nances are be­ing chal­lenged in New Hamp­shire and Ok­la­homa. Other states and mu­nic­i­pal­i­ties have since de­cided not to en­force their laws be­cause the Supreme Court re­fused to hear Spring­field’s ap­peal. “You can­not de­clare a down­town zone a no-free-speech zone,” says Ken Paul­son, pres­i­dent of the First Amend­ment Cen­ter at Van­der­bilt Univer­sity in Nashville. “You can­not ban free speech, and so-called pan­han­dling is free speech.”

Ad­vo­cates for the poor say anti-beg­ging or­di­nances crim­i­nal­ize poverty and over­look the root prob­lems of men­tal ill­ness, drug ad­dic­tion, and home­less­ness that can lead to pan­han­dling. “The an­swer is not to de­ploy the crim­i­nal jus­tice sys­tem to ar­rest peo­ple but to as­sure there are suf­fi­cient re­sources to re­solve the prob­lem,” says Maria Foscari­nis, founder and ex­ec­u­tive di­rec­tor of the Wash­ing­ton-based non­profit Na­tional Law Cen­ter on Home­less­ness & Poverty, which ad­vo­cates for poli­cies that pre­vent and re­duce home­less­ness.

The pop­u­lar­ity of pan­han­dling bans jumped at the be­gin­ning of the decade. The num­ber of cities with blan­ket bans in­creased 25 per­cent from 2011 to 2014, ac­cord­ing to a 2015 re­port from the Law Cen­ter. Spring­field en­acted its or­di­nance in 2007. Steven Rahn, Spring­field’s at­tor­ney, says the city was sim­ply try­ing to pro­tect mer­chants’ eco­nomic in­ter­ests. “We don’t think the Supreme Court ever in­tended to go with quite that broad of a rul­ing,” he says.

“Mer­chants would like there to be a re­spect­ful co­ex­is­tence,” says Lisa Clem­mons Stott, ex­ec­u­tive di­rec­tor of Down­town Spring­field, a non­profit that pro­motes cul­tural and eco­nomic de­vel­op­ment. “You can’t have peo­ple uri­nat­ing in door­ways and pan­han­dling cus­tomers who are eat­ing lunch out­side.” Gar­ret Mof­fett, who leads daily tours of the area dressed as Ward Hill La­mon, Lin­coln’s friend and per­sonal body­guard, agrees: “I don’t call it pan­han­dling. I call it ha­rass­ment.” Nor­ton agrees that ag­gres­sive pan­han­dling poses a nui­sance. He seeks do­na­tions by hold­ing a sign, not ver­bally ask­ing for money. Mark Wein­berg, a Chicago civil rights lawyer who rep­re­sented Nor­ton and Ot­ter­son, says there’s no com­pelling eco­nomic in­ter­est that jus­ti­fies squelch­ing free speech. “What’s go­ing on in Spring­field is broadly rep­re­sen­ta­tive of cities around the coun­try,” he says. “For Girl Scout Cook­ies, it’s yes. For pan­han­dlers, it’s no.”

The bot­tom line Cities that want to crack down on pan­han­dling find courts sid­ing with beg­gars af­ter the Supreme Court ex­panded rights to free speech.

Portland, Maine 16%

Seen, But Not Heard Home­less­ness in cities that have en­acted pan­han­dling re­stric­tions Lowell, Mass. 21% In­crease in home­less pop­u­la­tion since 2010

Chicago 9%

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