Bloomberg Businessweek (Asia)
Revenge of the panhandlers
A Supreme Court move bolsters the rights of panhandlers “You cannot declare a downtown zone a no-free-speech zone”
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.