In the summer of 2015, the nation’s attention once again focused intently on the highest court of the land as the Supreme Court delivered dramatic decisions on issues including gay marriage,
and housing discrimination.
It is a small wonder, then, that a decision concerning signage regulation in the Phoenix suburb of Gilbert received scant attention
and a decision remanding a case about panhandling in Worcester, Massachusetts received next to none.
While ordinary Americans (and indeed perhaps some of those in legal academia) may have never heard of Reed v. Town of Gilbert or Thayer v. City of Worcester, these two cases signify a coming sea change in how American municipalities regulate their streets and police their most vulnerable and indigent populations.
In Reed, Justice Thomas articulated a new standard for courts to assess the content neutrality of laws regulating speech,
a move likely to have profound consequences on a broad array of subjects from advertising regulations to securities laws because deciding a law is content based is virtually tantamount to deciding it is unconstitutional.
This Note focuses on the often-ignored area of panhandling where Reed has already had tremendous effect: In Thayer, the Supreme Court remanded a decision by former-Justice Souter to be decided in accordance with Reed.
This decision signals that the Supreme Court views Reed as the new standard for content-neutrality determinations and that it fully expects this standard to alter panhandling jurisprudence.
The Court’s dismantling of the constitutionality of panhandling regulations will affect cities across America that have passed laws regulating and curbing panhandling, particularly focusing on the problem of beggars that aggressively solicit donations.
Albuquerque outlaws all panhandling that occurs within three feet of a potential donor, unless the donor has agreed to donate.
Fort Lauderdale prohibits soliciting for alms on its beaches.
And the City of San Antonio has even considered penalizing those who give to beggars.
New York City bans soliciting donations on its subways,
as well as aggressive begging,
and is currently looking for a method to curb costumed characters and topless women from asking for donations in Times Square.
As this Note discusses, these panhandling regulations differ greatly from one another, with some laws outlawing all conduct and others more carefully targeting harmful behavior.
With the recent decision in Reed, however, there is a real danger that virtually all panhandling laws will be invalidated, even though some serve to protect pedestrians and others.
As anyone who has lived in an urban environment knows, panhandling takes many forms, ranging from musicians playing concertos with their violin cases on the sidewalk to encourage donations to an imposing homeless man demanding money in a secluded alley.
Instead, this Note defines panhandling as any in-person solicitation for immediate charitable giving of either cash or goods for the purpose of benefiting the person doing the solicitation.
This definition therefore excludes face-to-face solicitation for third parties or charities. Using this definition, this Note will show that the constitutionality of current panhandling laws is dubious after Reed.
Part I of this Note will discuss background First Amendment doctrine necessary to understand the importance of Reed’s effect on panhandling laws and introduce the captive audience doctrine. Part II will argue that panhandling is protected speech, discuss panhandling laws, and offer a tripartite categorization of those laws. Part II will then discuss how appellate courts before Reed tackled different types of panhandling laws and explain the Reed decision in greater depth. Finally, Part III will show that virtually no panhandling regulations can withstand constitutional scrutiny under Reed and Thayer. It will then offer the solution of balancing the rights of those panhandling with the rights of captive audiences so that courts may retain salubrious panhandling regulations.
I. An Overview of First Amendment Doctrine
This Part explores the current understandings of the First Amendment’s protection of aggressive panhandling and the captive audience doctrine. Section I.A summarizes background on First Amendment doctrine and discusses how courts analyze whether regulations of speech or expression violate the Constitution. Section I.B then explains the captive audience doctrine, which this Note later argues is a possible solution to prevent the wholesale invalidation of panhandling regulations.
A. First Amendment Doctrine
The doctrine surrounding the First Amendment is notoriously complex.
This section summarizes the relevant legal frameworks that courts use to determine whether speech is protected by the First Amendment and if so, how to regulate the protected speech.
1. What Speech Is Protected? — The First Amendment’s mandate that “Congress shall make no law . . . abridging the freedom of speech”
is arguably the most famous and sacrosanct in all of American law.
Despite this ostensibly simple language, determining what “abridgment of the freedom of speech” means is no simple task. Fighting words, obscenity, and threats, for example, fall outside of many of the Constitution’s protections,
and governments can often regulate such “low value” speech as long as the law does not discriminate on the basis of viewpoint.
Even if an utterance is not unprotected low-value speech, the full aegis of the First Amendment may not protect it. If the speech is commercial in nature, courts apply a less exacting test in determining the validity of the regulation.
Courts, however, do not consider all expression involving financial transactions commercial speech.
In a trio of cases in the 1980s, the Supreme Court found solicitation from charitable groups was noncommercial speech deserving of the First Amendment’s full protections. In the first of these cases, Schaumburg v. Citizens for a Better Environment, the Court considered a law requiring charities that solicited door to door to dedicate at least seventy-five percent of donations to charitable purposes.
Striking down the law, the Court rejected the Village of Schaumburg’s arguments that canvassing for donations is “purely commercial speech” because charitable solicitors advocate for particular social or political issues as opposed to merely trying to inform economic decisions.
In subsequent cases, the Court has expanded and affirmed Schaumburg’s protection for solicitation.
Despite the fact that solicitation at many times involves commercial elements,
Schaumberg stands for the proposition that the Court will not try to parse out which parts of solicitation involve traditional elements of First Amendment protection and which constitute mere commerce; instead, it will treat all such speech as protected.
2. The Content-Based and Content-Neutral Distinction. — Protected speech is not entirely immune from regulation. The Court interprets the First Amendment to generally prohibit any laws that regulate or restrict “expression because of its message, its ideas, its subject matter, or its content.”
Therefore, an often-dispositive facet of First Amendment analysis is whether the law in question is content based and contingent on what the expression says or content neutral and agnostic to the message conveyed.
Courts subject laws that discriminate on the basis of content to strict scrutiny.
For a law to survive this exacting test, a court must find that the regulation serves a “compelling state interest” and “is narrowly drawn to achieve that end.”
Courts define narrowly tailored as a “least restrictive means” test.
Thus, if the government could accomplish its interest in any other way than a content-based regulation on speech, the law fails strict scrutiny and is unconstitutional.
Due to the stringent requirements of the strict scrutiny test, content-based laws are nearly per se considered illegal.
The Court has nonetheless shown some willingness to uphold a content-based law when balancing another fundamental right, such as the right to vote.
Still, determining the content-neutral or content-based distinction remains critically important and dispositive in nearly all cases.
Making the determination of what laws fall into each category has traditionally been murky. Academics routinely have denounced the byzantine and inconsistent manner courts determine whether a regulation discriminates against the content of speech.
This Note explores how Reed v. Town of Gilbert
articulates a new standard for determining content neutrality in section II.C.
3. Intermediate Scrutiny Test. — Courts group content-neutral laws into two categories: those that place an incidental burden on speech and those that merely regulate the time, place, and manner of speech.
Unlike content-based laws, which require strict scrutiny, these tests employ “intermediate scrutiny” to determine if the regulation violates the First Amendment.
Courts use a test from United States v. O’Brien
to analyze laws that primarily regulate conduct but also place burdens on speech. In O’Brien, a protester faced charges for destroying his draft card during a protest of the Vietnam War.
The Court upheld the prohibition on burning draft cards after evaluating the law under what is now referred to as the O’Brien test:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
O’Brien’s progeny have further clarified this four-part analysis. In particular, the Court in Ward v. Rock Against Racism made clear that O’Brien’s fourth prong—that burdens on speech be “no greater than essential”—does not equate to the “least restrictive means” requirement of strict scrutiny.
Instead, intermediate scrutiny requires that the law in question is “not substantially broader than necessary to achieve the government’s interest.”
The second category of content-neutral laws regulates speech directly but does so irrespective of its content.
The law in Ward—an ordinance that regulated decibel levels in a Central Park band shell—serves as an exemplar for such a “time, place and manner” law.
The Court in Ward applied a test requiring the regulation to be “justified without reference to the content of the regulated speech,” to be “narrowly tailored to serve a significant governmental interest,” and to “leave open ample alternative channels for communication.”
The major difference between the tests in O’Brien and Ward is the requirement in the latter that regulations allow “ample alternative channels” for the expression.
Ward stated there was “little, if any” difference between the two tests.
As a result, some scholars view the tests as virtually identical,
while others believe that the additional requirement of alternative communications for the time, place, and manner test still affects courtroom outcomes.
4. Public Forum Doctrine. — In summarizing First Amendment doctrine, this Note has made an important assumption: The laws regulating First Amendment expression do so in public forums. As Justice Owen Roberts noted in the case of Hague v. Committee for Industrial Organization, public forums such as streets and parks serve a crucial function for “purposes of assembly, communicating thoughts between citizens and discussing public questions.”
Thus, courts feel their use of the exacting tests for both content-neutral and content-based laws is justified when such laws seek to regulate speech in these forums.
In addition to “traditional” public forums such as streets and parks, courts also recognize designated public forums: private property that the government has opened for expression.
Examples of designated public forums include university meeting places
and municipal theaters.
While nothing compels governments to create designated public forums, once the state has designated property for expression, courts will analyze speech regulations under the same tests employed for traditional public forums.
Not all property owned by the government is a public forum or designated public forum.
Courts treat a government forum as nonpublic if the government excludes the public from its property or opens areas to the public for reasons independent of expression—such as commercial activities or trade.
Examples include state fairgrounds
and airports, where the government allows the general public to use facilities for the respective purposes of commerce and transportation.
Courts evaluate regulation of speech in these areas under a far more lenient standard
that asks if the regulation was “reasonable in light of the purpose which the forum at issue serves.”
Unlike strict or intermediate scrutiny, this reasonableness test does not require narrow tailoring or a compelling governmental interest.
Like the distinction between content-based and content-neutral speech, deciding the forum has an outsized impact on whether a law will pass constitutional muster. First Amendment doctrine represents a complex framework of overlapping tests that courts use to ascertain which speech is protected and if speech is protected, whether or not a law regulates the speech in a manner consistent with the Constitution.
B. Captive Audience Doctrine
As the constitutionality of the noise-control ordinance at issue in Ward demonstrates, privacy and tranquility of citizens subjected to speech can be a compelling interest.
Despite this holding, First Amendment doctrine usually does not protect those subjected to speech they dislike in public forums because individuals can simply choose to walk away and not listen.
A problem arises, however, when people cannot avoid expression—when they are captive to speech they find disturbing or unsettling.
Courts usually apply the First Amendment as an active right to both speak and listen (or read or watch). Yet embedded in the freedom of speech is a right not to speak
and a right not to listen. As one commentator has stated: “[C]ompulsion to listen is the hallmark of a totalitarian society.”
This right not to listen is often referred to as the captive audience doctrine.
It reaches its apex in one’s residence. The Court noted “[t]he right to avoid unwelcome speech has special force in the privacy of the home.”
The Court has upheld laws that allow residents to direct the Post Office not to send advertisements to their domiciles
and municipal ordinances preventing picketing around personal residences.
How far the right to avoid speech extends beyond the home—and the government’s compelling interest in protecting that right—is unclear.
The Supreme Court has extended the doctrine at least once in the limited case of public transportation. In Lehman v. Shaker Heights, the Court upheld Shaker Heights’s refusal to allow a political candidate to run an advertisement on public buses in part because bus passengers were members of a captive audience.
Courts, however, have not applied the captive audience doctrine when transit authorities’ allowance of both political and commercial speech creates a designated public forum.
For example, the Second Circuit has ruled that because the Metropolitan Transportation Authority (MTA) accepts political advertisements, it cannot refuse advertisements due to potentially objectionable content.
The Southern District of New York has applied the rule even to advertisements many would find extremely inflammatory, without considering any captive audience rights of subway passengers.
Furthermore, the captive audience doctrine has a very limited function outside the home. In Erznoznik v. City of Jacksonville, while acknowledging the “privacy rights” of captive audiences, the Court struck down an ordinance preventing the showing of nudity at drive-in movie theaters visible from a public place due to concerns about government censorship.
Despite the doctrine’s limitations, the Court has historically shown interest in applying the captive audience framework to the healthcare context. In Hill v. Colorado, the Court upheld a law designed to protect people near abortion clinics from protesters by creating eight-foot “buffer zones” around those near health care facilities where protesters could not approach without consent.
Writing for the Court, Justice Stevens applied the captive audience doctrine to those seeking health-care, carving out a governmental interest to protect the ability of one to go from their house to a healthcare facility without having to enter a “confrontational setting.”
This ruling in Hill has come under question after another abortion-protest case: the recent decision of McCullen v. Coakley.
In McCullen, Chief Justice Roberts discussed being a captive audience not as a First Amendment violation but rather a virtuous element of the marketplace of ideas:
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail” this aspect of traditional public forums is a virtue, not a vice.
Whether this holding applies in the panhandling context, in particular the aggressive panhandling context, will be discussed later in section III.B.
II. Panhandling Regulations and Jurisprudence
Part I discussed the First Amendment doctrinal frameworks; this Part discusses how appellate courts have applied those frameworks to panhandling cases. It also discusses the recent case of Reed v. Town of Gilbert
and its potential effects on panhandling laws. Section II.A argues that panhandling is protected First Amendment speech. Section II.B discusses how appellate courts have interpreted First Amendment doctrine as applied to panhandling cases and shows that the current content-based analysis of panhandling creates doctrinal difficulties. Section II.C notes how Reed altered existing frameworks for determining whether speech regulations are content-based or content-neutral.
A. Panhandling Is Protected Speech
While the Supreme Court has made clear that the First Amendment protects soliciting donations for charities,
it has remained silent on the issue of whether personal solicitation or panhandling falls under such protections.
This section argues panhandling now enjoys—and should enjoy—First Amendment protection. It begins by rejecting alternative methods of treating panhandling and then discusses the current de facto consensus among appellate courts that panhandling is protected speech.
1. Alternatives to Protected Speech. — It is easy to conceive of potential classifications for panhandling other than protected speech. Since panhandling involves an exchange—or a request of an exchange—of goods or currency, one possible paradigm to view panhandling would be commercial speech.
As most cases now find panhandling to fall under the auspices of Schaumburg,
courts do not question whether such personal solicitation is “purely commercial” and therefore subject to the Central Hudson test.
It makes sense that courts would be loath to try to find what panhandling was purely commercial, just like solicitation it would be almost impossible to see where the commercial speech ended and First Amendment speech began. Even in situations where the panhandling has more commercial elements, such as someone who performs a song or washes a windshield in order to help spur donations, it would be impossible to delineate which part of the message is protected solicitation and which is commercial.
In a 2005 case in the Southern District of Ohio, the City of Cincinnati argued the court should treat panhandling as commercial speech.
The district court rejected this claim, holding that Schaumburg controlled even for personal solicitations, evincing the widespread con-sensus among the courts that panhandling is not commercial speech.
Courts could alternatively analyze panhandling as purely “low value” speech or conduct outside of the First Amendment’s protections.
The Second Circuit in Young v. New York City Transit Authority
exemplifies this approach.
In Young the court took up a challenge of the New York City Transportation Authority’s
(MTA’S) longtime ban on panhandling and begging in New York City subway system.
While the Supreme Court in Schaumburg ruled solicitation for charities conveyed important political and economic messages,
the Young court noted in dicta that “[t]he only message that we are able to espy as common to all acts of begging is that beggars want to extract money from those whom they accost” and that “[w]hile organized charities serve community interests by enhancing communication and disseminating ideas, the conduct of begging and panhandling in the subway amounts to nothing less than a menace to the common good.”
Thus, the court argued “common sense tells us that begging is much more ‘conduct’ than it is ‘speech’” and therefore is outside the First Amendment’s protections.
The Second Circuit, however, declined to declare panhandling unprotected conduct, and despite its dismissive language on pan-handling’s First Amendment value and its determination that the subway system was a nonpublic forum,
the court still performed an inter-mediate scrutiny O’Brien analysis as well as a “time, manner and place” test “arguendo.”
Unsurprisingly, the Young court found the MTA’s regulation passed both intermediate scrutiny tests.
As the next section demonstrates, this holding proved to be ephemeral.
2. The Loper Approach: Panhandling as Protected Speech. — The Second Circuit’s view of panhandling as conduct or low-value speech from Young did not last long: In an influential and oft-cited opinion,
the court shifted its position in Loper v. New York City Police Department three years later, beginning the process of a widespread recognition among federal courts that panhandling deserves constitutional protection.
In Loper, the Second Circuit struck down a law punishing loitering with the intent to panhandle.
In sharp contrast to Young,
the Loper court defined begging as “communicative activity,” finding the loitering statute content neutral.
Unlike Young, where the court applied intermediate scrutiny only in arguendo, the Loper court believed panhandling fell under the First Amendment’s protection as solicitation as established in Schaumburg.
The Loper court went as far as stating that there is “little difference between those who solicit for organized charities and those who solicit for themselves . . . .”
Accordingly, the Loper court analyzed the law under the time, place, and manner test and ruled that while banning panhandling in the subway still allowed beggars to communicate above ground, a ban on all panhandling would foreclose all alternative means of communication.
Distinguishing the case from Young by noting that the statute in Loper regulated the traditional public forums of streets and parks while the MTA ban in Young only applied to subway cars and their immediate environs,
the Second Circuit applied the arguably more regulation-friendly O’Brien test
and found the law insufficiently tailored.
Academic work on panhandling supports the Loper court’s argument that panhandling conveys a message deserving of First Amendment protection. Some commentators have pointed out that begging can have First Amendment value for both those who panhandle and for those who are on the receiving end of the solicitation: First, panhandling informs those receiving and witnessing solicitations about societal problems such as homelessness and poverty, either through the words spoken or the mere act of begging itself.
This awareness takes on an added import-ance in a democratic society, as information about the existence and prevalence of abject poverty may inform a voter’s choices come Election Day.
On a deeper level, begging may encourage listeners of the speech to evaluate their own feelings about living in a society of homelessness or to fulfill spiritual obligations by giving alms to the needy.
Finally, the act of begging can allow for panhandlers to achieve self-realization by giving them the freedom to express themselves and to express their values about giving to others and society in general.
Law professors are not the only ones convinced that constitutional protection for panhandlers is sound. Although never explicitly adopted by the Supreme Court,
a number of jurisdictions have followed Loper’s determinations that the First Amendment protects personal solicitation. The Fourth,
Circuits have all explicitly adopted Loper’s First Amendment protection for panhandling. While not adopting Loper’s holding, the First Circuit has also implied a belief that panhandling deserves at least intermediate scrutiny.
The Massachusetts Supreme Court has also borrowed reasoning from Loper to find First Amendment protections for panhandling.
The Young argument that begging is merely conduct, while never explicitly overturned by Loper or any other Supreme Court case, is nonetheless extinct across jurisdictions.
The widespread and clear consensus among appellate courts across the country is that the First Amendment protects panhandling.
Finally, while not dispositive of a ruling on the issue, the recent decision in Thayer v. City of Worcester
heavily implies the Supreme Court also views panhandling as protected speech, as it remanded the case to be decided in accordance with Reed v. Town of Gilbert, a case clearly concerning speech rather than conduct.
This further evinces that despite the lack of an explicit ruling, it is virtually settled law that panhandling deserves at least some First Amendment protections.
3. Justice Kennedy’s Lee Approach. — Although the First Amendment protects panhandling, it is not altogether clear that the Loper court’s conclusion that courts should not treat panhandling differently than charitable solicitation is correct. A hybrid approach adopted by Justice Kennedy would treat panhandling as a mixture of both conduct and speech.
This approach, while never adopted by the Supreme Court, remains influential, especially among judges and lawyers attempting to uphold panhandling regulation, and it is still cited by briefs and cases to this day.
As discussed in section III.A, however, the decision in Reed to adopt a formalist approach to content neutrality means that this approach is now untenable.
Justice Kennedy’s approach is best encapsulated by his concurrence in International Society for Krishna Consciousness, Inc. v. Lee.
In that case, members of the Hare Krishna sect challenged a ban on charitable solicitations in and on the sidewalks of airports operated by the Port Authority of New York and New Jersey.
The majority opinion found the solicitation protected by the First Amendment but showed far more wariness toward personal solicitation: “[F]ace-to-face solicitation presents risks of duress that are an appropriate target of regulation.”
As panhandling necessarily involves such face-to-face solicitation,
it is impossible not to imagine such skepticism applying to panhandling as well.
In a concurrence, Justice Kennedy took the majority’s antipathy toward face-to-face regulation further. Unlike the majority, Justice Kennedy argued airports were public forums and considered the ban on solicitation a content-neutral ban subject to intermediate scrutiny.
In applying an intermediate scrutiny test,
however, Justice Kennedy argued that while an ordinance banning the solicitation of all funds would be content based, the regulation in Lee aimed only to regulate immediate request of funds and the physical transfer of money, which he described as “an element of conduct interwoven with otherwise expressive solicitation.”
Justice Kennedy then noted the dangers of fraud and duress present with such immediate solicitation of funds, analogizing the law in Lee with regulations on door-to-door salesmen.
Justice Kennedy thus felt the banning of solicitation passed intermediate scrutiny as a closely drawn, compelling governmental interest. Justice Kennedy also believed the regulation allowed for alternative methods of communication because solicitors could request nonimmediate donations.
Thus, while Justice Kennedy might disagree with the court in Young that panhandling is merely conduct, he would also disagree with the court in Loper that there is “little difference between those who solicit for organized charities and those who solicit for themselves . . . .”
Justice Kennedy views panhandling as occupying a space between protected third-party solicitation and conduct unprotected by the First Amendment.
And because this middle ground involves conduct, regulation of panhandling is content neutral according to Justice Kennedy’s approach. This Note will discuss the future of this approach with the newly adopted standard for approaching content neutrality in Part III.
So far this Note has discussed panhandling and panhandling regulations as a monolithic concept. As the next section demonstrates, nothing is further from the truth, as panhandling regulations have important differences.
B. Categories of Panhandling Regulation
1. Defining Categories. — While no panhandling regulation is identical, many share significant similarities. This Note proposes a tripartite categorization for analyzing these laws and comparing cases across jurisdictions. First, this section describes each of the three types of panhandling laws. It then discusses how appellate courts have treated each category differently.
The simplest types of panhandling laws are “blanket bans,” laws that completely outlaw panhandling in a city. This was the type of law held unconstitutional in Loper
and in the Sixth Circuit’s recent decision in Speet v. Schuette.
Blanket bans would also describe a recent failed initiative from the San Antonio police chief, which would fine motorists for giving money to panhandlers.
Next are “aggressive begging” statutes, which regulate the type of begging allowed. These laws became in vogue in the 1990s, as a method for cities to control their panhandling “problems” without running afoul of potential constitutional problems.
Even more traditionally liberal institutions saw these laws as a happy medium between blanket bans and anarchy,
and they became popular with many cities, including New York City.
Unlike blanket bans, aggressive-begging statutes only outlaw panhandling seen as “aggressive.” But what “aggressive” means is not limited to the word’s plain meaning, and many aggressive-begging laws give panhandlers a very short leash. New York City’s statute is typical, banning aggressive behavior ranging from causing a reasonable person to fear bodily harm to a mere suffering of “unreasonable inconvenience, annoyance or alarm.”
Other prohibited behavior includes begging within ten feet of an ATM machine, approaching vehicles, and obstructing traffic in such a way that pedestrians or vehicles avoid the beggar.
Other aggressive-begging statutes contain even more restrictions. The City of Worcester enacted a law banning soliciting for donations after sundown and begging from those sitting at a sidewalk café or waiting in line.
Similarly, an Indianapolis law classified begging at night, using profanity, following people who walk away, or panhandling in a group of two or more persons as aggressive.
Finally, “location bans” outlaw panhandling in certain areas of the city, similar to the subway ban in Young.
Unlike in Young, most location-based bans apply not to unique transportation facilities but to commercial thoroughfares or areas known for tourism. For example, Charlottesville, Virginia, banned begging on two downtown streets,
Las Vegas outlawed panhandling in its downtown area in an effort to increase tourism,
Henrico County, Virginia, banned panhandling on its roadways
and Fort Lauderdale banned panhandling on public beaches.
Sometimes location-based laws regulate rather than outright ban panhandling: Springfield, Illinois, enacted such a law in its downtown
—a center for Lincoln-related tourism
—as did Seattle, which regulated street performers at Seattle Center, a popular park and home of the Space Needle.
Critics of location-based regulation charge that banning panhandling in well-trafficked areas is akin to banning panhandling outright, as populated public areas are the only areas where a beggar can profit from his or her solicitations.
While the categories are not rigid and many laws exhibit characteristics of multiple categories, this categorization allows for a useful framework to discuss and compare different panhandling regulations. It is especially important to distinguish different categories, because as the next section and Part III discuss, blanket and location bans historically have run afoul of intermediate scrutiny tailoring requirements, while aggressive-panhandling bans have more problems with content neutrality. As discussed in section II.C and Part III, however, under the new framework of Reed v. Town of Gilbert,
current doctrine treats all of these categories as content-based laws.
2. Differing Appellate Treatment for Differing Panhandling Laws. — Using the tripartite categorization of panhandling laws shows a pattern in how courts have treated such laws. Few cases involve blanket bans, most likely because drafters of ordinances fear such laws will not survive courtroom challenges.
It is telling that in the recent case of Thayer v. City of Worcester, the city’s lawyers conceded that courts often find blanket bans and location bans with large areas unconstitutional, while attesting to the constitutionality of targeted location bans and aggressive-panhandling bans.
a. Location and Blanket Bans. — In the one federal appellate court case considering a blanket ban after Loper, the Sixth Circuit ruled that the ban violated the Constitution.
Because the case involved a facial challenge, the Sixth Circuit reached its conclusion using an overbreadth analysis.
The court also described the regulation as content based, because it distinguished between panhandling and other forms of solicitation.
This went further than even the Second Circuit in Loper, which instead applied intermediate scrutiny to what that court felt was a content-neutral law.
Curiously, the Sixth Circuit also implied a regulation of panhandling—perhaps an anti-aggressive-begging statute—might pass muster if it held “due regard” for First Amendment interests.
Other than a clearly unconstitutional act banning all solicitation, it is impossible to imagine a panhandling regulation that could be more content neutral.
The Sixth Circuit’s descriptions of the ban in that case might have been dicta, but in considering location bans, other circuits have held begging bans unconstitutional for similar reasons. In considering a ban on panhandling in downtown Charlottesville, the Fourth Circuit ruled:
The Ordinance plainly distinguishes between types of solicitations on its face. Whether the Ordinance is violated turns solely on the nature or content of the solicitor’s speech: it prohibits solicitations that request immediate donations of things of value, while allowing other types of solicitations, such as those that request future donations, or those that request things which may have no “value”—a signature or a kind word, perhaps.
The Court went on to invalidate the law using a strict scrutiny standard.
Similar to the Fourth Circuit, the Ninth Circuit found a location ban on panhandling in downtown Las Vegas content based because it treated solicitation for immediate funds differently.
Blanket bans and large location bans have all but disappeared after Loper due to their lack of tailoring.
Some more limited location bans do exist,
although Reed will likely change that in the future.
b. Aggressive Panhandling Bans. — Unlike location and blanket bans, appellate courts have not universally struck down bans on aggressive panhandling. While the Ninth Circuit has predictably
struck down such bans as content based,
the Seventh Circuit has not. In Norton v. City of Springfield, the Seventh Circuit found a ban on panhandling in downtown Springfield, Illinois, content neutral and constitutional.
The ban allowed silent panhandling but prevented active, verbal solicitations for immediate funds.
The ban had both elements of a location-based and aggressive-panhandling ban, albeit with a very low bar for what constituted aggressive.
Similarly, in Thayer v. City of Worcester, Justice Souter—sitting by designation on the First Circuit—upheld Worcester’s aggressive-begging law after applying intermediate scrutiny.
The regulation required authorities to inquire not only into whether the speech involved solicitation but also if the speech contained aggressive or violent language.
Justice Souter wrote that because the speech in question did not involve the government disagreeing with a particular message, it therefore was content neutral.
The morass of appellate cases on panhandling shows that historically, while a consensus existed that blanket bans and broad-based location bans were unconstitutional, there was disagreement concerning whether aggressive begging (often with elements of location bans) should be upheld.
But as the next section will discuss, likely no regulation of panhandling is constitutional after Reed.
C. Reed v. Town of Gilbert Fundamentally Alters the Landscape
As the above section illustrated, appellate courts have struggled with where to draw the line between content neutral and content based speech regulations. This section describes how recent Supreme Court cases have changed the doctrinal landscape with the potential to bring uniformity to the law of panhandling regulation and content-neutral determinations as a whole.
The Supreme Court provided somewhat of an answer to what makes a law content neutral in the 2014 decision of McCullen v. Coakley.
While not explicitly overturning the previous abortion-protest case of Hill v. Colorado,
the Court, in a 9-0 decision, struck down a Massachusetts law banning “knowingly standing” within thirty-five feet of a reproductive-health facility, with an exemption for clinic staff.
Chief Justice Roberts, as well as the liberal wing of the Court, found the law to be content neutral because it would not require authorities to “‘examine the content of the message that is conveyed to determine whether’ a violation has occurred,” since the law prohibited the conduct of those standing in the buffer zone regardless of their expression.
Thus, to Chief Justice Roberts, because the statute in question only regulated the place and not the content of the message, it was content neutral. The Court did inquire into whether the Massachusetts legislature had a content-based motive for enacting the legislation, but the Court ultimately accepted the legislature’s stated reasons of “public safety” and congestion as satisfying a content-neutral motive.
This contrasted with the approach in several appellate courts of analyzing the governmental motive to determine if there was intent to discriminate based on content.
Justice Thomas went even further in Reed v. Town of Gilbert in discussing the content neutrality of a law that treated certain types of signs, such as political ones, more favorably than signs indicating the time and place of events—in this case sermons for a small local church.
Finding the law content based, Justice Thomas formulated a two-part test: Courts should inquire into governmental motive only after determining if it is “content neutral on its face.”
Justice Thomas articulated the first step of the test—determining whether a law is “content neutral on its face”—in striking terms: “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”
Thus, Reed makes McCullen even more explicit: Any kind of parsing of the speech’s content merits strict scrutiny.
The sole inquiry needed in separating legal from illegal speech is whether the provision prohibits speech based on its substance.
It is debatable, however, whether Justice Thomas’s formulation of the content-neutrality test is a radical shift in doctrine or a regurgitation of existing doctrine. Three of the six Justices joining his opinion—Justices Kennedy, Alito, and Sotomayor—filed a separate concurring opinion noting that certain types of restrictions, such as one regulating signs for one-time events, differently than other signs, would be content neutral since they do not “discriminate based on topic or subject.”
This seems to water down Justice Thomas’s belief that any parsing of content is unconstitutional; under his view, whether an event is a one-time event is a matter of message and content and would therefore be content based.
For Justice Kagan, however, the Thomas majority opinion marked a fundamental departure from existing precedent. In her concurrence in the judgment, she forcefully denounced the consequences of subjecting more laws to strict scrutiny under Justice Thomas’s formalist approach: “As the years go by, courts will discover that thousands of towns have such ordinances, many of them entirely reasonable. And as the challenges to them mount, courts will have to invalidate one after the other.”
Panhandling regulations can be classified into three distinct categories, which have often received different treatment among the appellate courts. This current state of affairs will likely change with the Supreme Court’s Reed decision: Under the new framework, all panhandling regulations will likely be considered content based and therefore unconstitutional. Yet, as the next Part shows, interpreting Reed and its effects is no simple matter.
III. A New Paradigm
This Part describes how the vast majority of panhandling regulations are vulnerable to First Amendment challenges after Reed and offers a solution to the possibility that almost all panhandling regulation will be ruled unconstitutional. Section III.A demonstrates that nearly all existing panhandling laws are unconstitutional. Section III.B offers a possible solution that would enable courts to uphold meritorious panhandling laws: By invoking the fundamental rights invoked in the captive audience doctrine, courts could allow some regulations to pass strict scrutiny. Regardless of whether courts adopt this solution, this Part makes it clear that after Reed, the doctrinal status quo concerning panhandling laws is untenable.
A. Panhandling Laws Are Likely Unconstitutional
While the various opinions in Reed v. Gilbert might suggest that a majority of the Court is not ready to embrace Justice Thomas’s bright-line-rule formulation of content-based laws,
the Court has already signaled that it envisions Reed overturning content-based laws. In Thayer v. City of Worcester, the Court remanded the decision to be considered in light of Reed,
effectively overruling former-Justice Souter’s views that aggressive-begging statutes are content neutral.
On remand, the district court predictably held that under Reed, Worcester’s statute was content based and failed strict scrutiny.
The District of Massachusetts has also struck down an aggressive-begging statute in Lowell, Massachusetts, with language indicating that the court views Reed as holding any panhandling regulation to be content based by its very nature:
[T]he Ordinance distinguishes solicitations for immediate donations from all others. A person could vocally request that passersby in the Historic District make a donation tomorrow, but not today (a distinction that may be of great import to someone seeking a meal and a bed tonight). He could ask passersby to sign a petition, but not a check. The City’s definition of panhandling targets a particular form of expressive speech—the solicitation of immediate charitable donations—[an]d applies its regulatory scheme only to that subject matter.
Similarly, the Seventh Circuit has interpreted Reed as compelling the conclusion that aggressive-panhandling laws are content based. Judge Easterbrook, overturning his earlier Norton v. City of Springfield decision,
defined the new legal landscape in stark terms: “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification,”
and the Supreme Court has denied a petition of certiorari from the City of Springfield.
The Fourth Circuit has also abrogated its current doctrine from Clatterbuck v. City of Charlottesville
on content neutrality in panhandling laws.
And the District of Colorado has held a panhandling law in Grand Junction to be content based in light of Reed.
Aggressive-panhandling laws—originally envisioned as a way to regulate panhandling without threatening free speech
—are poised to be the first casualty of Reed’s new formulation of content neutrality. Under any formulation of Justice Thomas’s opinion, it is nearly impossible to imagine them surviving constitutional challenges.
As aggressive-panhandling laws target threatening language or persistent solicitations, they clearly regulate based on the message of the speech. It is a further step still to call blanket bans on panhandling and solicitation of immediate funds content neutral. Location and blanket bans ask only whether a beggar solicited money, not how he or she did so. Under Justice Kennedy’s concurrence in Lee, this act of requesting immediate funds is conduct as opposed to speech.
Under Justice Kennedy’s view then, blanket and location bans discriminate only on the basis of conduct.
Yet while asking for money does contain elements of conduct it also involves at least some speech. And this speech element is all that is needed under Reed.
As the Sixth Circuit points out in Speet v. Schuette, blanket bans still require discerning between types of solicitation.
For blanket bans, it would be impossible to know if a solicitation took place or was immediate without determining the content of the solicitation. An authority must inquire whether the panhandler simply said, “Good morning” or “Good morning, can you spare some change?” By examining the content of the speech, this analysis fails Justice Thomas’s content-neutrality test. And unlike Justice Kennedy’s test in Lee, the justification or purpose for the panhandling ban would not save a facially content-based regulation after Reed.
Furthermore, even if a court viewed a blanket ban as content neutral, such regulation would still almost certainly fail intermediate scrutiny.
Blanket bans afford no alternative means of communication,
thus failing any time, place, or manner standard.
Even if a court applied an O’Brien test without an alternative means requirement, a court could not plausibly construe a broad regulation on all immediate solicitation as reasonably tailored or a closely drawn legislative solution to the problem of potential duress or threats.
And in the incredibly unlikely event a blanket ban was both content neutral and narrowly tailored enough to pass intermediate scrutiny, an overbreadth challenge like that in Speet would likely succeed because the law would prevent First Amendment-protected solicitation in an attempt to prevent unprotected solicitation.
Thus, despite the colorable argument that blanket bans are content neutral because one could conceive of them hinging only on what type of conduct is at issue, they lack the tailoring needed to pass the current consensus among appellate courts concerning tailoring of panhandling regulation.
Unlike blanket bans, location bans have a higher chance of passing intermediate scrutiny because they arguably allow for alternative methods of communication since they allow for panhandling in areas not covered by the location ban. But such a conclusion is not entirely convincing, as many location bans operate as de facto blanket bans that prohibit panhandling in the only areas of town worth begging in.
A beggar lacking the ability to panhandle in areas with commercial or tourist traffic has no real meaningful alternative: There is good reason that beggars are not found among residential streets or industrial districts. The only location bans that would offer a meaningful alternative are those not focused on areas of commerce or foot traffic but those that protect very specific public areas where pedestrians are vulnerable.
Thus like blanket bans, almost all location bans would fail intermediate scrutiny.
After Reed, panhandling regulations exist in a state of extreme vulnerability. Already, courts have held that under Reed, panhandling regulations discriminate on the basis of content.
Aggressive-panhandling bans, which determine legality on the basis of how the speech is said, are especially vulnerable to being held content based. Location and blanket bans might have a better chance of being content neutral, but as they require examination of the expression in question, they are likely content based under Reed as well. And due to their lack of tailoring, intermediate scrutiny and overbreadth challenges also pose considerable danger to location and blanket bans. In the wake of Reed, panhandling regulation in America looks increasingly moribund.
B. The Captive Audience Doctrine Is the Appropriate Framework for Evaluating Such Laws
This section proposes a possible solution to the problem of panhandling regulation in a post-Reed world. This section discusses whether municipalities need panhandling regulation at all. It then argues that cities can benefit from narrowly tailored regulation that protects captive audiences and proposes a framework for courts to balance the First Amendment rights of both speakers and listeners in the strict scrutiny context. Finally this section discusses how alternative doctrinal strategies to upholding panhandling laws do not sufficiently protect First Amendment interests.
A possible solution for cities after Reed is to accept their inability to legislate panhandling in public forums and to rely on other laws, such as harassment, to stop the worst actors who engage in repeated following or threats.
While laws might successfully curb some negative behavior, requirements such as intent or fear of physical injury would leave much aggressive and potentially coercive solicitation as legal.
It is also important to note that while panhandling has positive effects on a free society,
it also has several downsides. Panhandlers can pressure people into giving money against their will
or in some instances commit outright fraud.
Perhaps even more troubling is that beggars and panhandlers, some of whom suffer from mental disorders or alcohol and drug addictions, can prove dangerous to individuals’ safety.
Finally, the pestering nature of some panhandlers can make citizens “callous” to the plight of the homeless and perhaps less likely to give to institutional charities or support political positions that protect the needy.
Therefore, within the realm of constitutional reason, it seems that municipalities should have some leeway to regulate some panhandling. While Justice Thomas’s bright-line rule in Reed does not differentiate among panhandling laws,
the laws themselves have very different impacts on speech: Blanket bans and location bans unjustly chill all panhandlers including those passively asking for change, while aggressive bans that are sufficiently targeted against bad actors, seem a reasonable method for cities to protect their streets when audiences are captive. Yet, such aggressive-panhandling laws are by their very definition contingent on the speech’s message and therefore content based.
This Note proposes the solution that while aggressive-begging laws might be content based and subject to strict scrutiny, that does not mean they are necessarily unconstitutional.
The Court has shown a willingness to uphold laws on strict scrutiny when the regulation in question protects important rights.
For example, in Burson v. Freeman, a regulation on political speech around polling places passed strict scrutiny due to the importance of the fundamental right of voting in an election free of intimidation and fraud.
Panhandling challenges should be seen as a struggle between two First Amendment rights: the right of beggars to express themselves and bystanders to remove themselves from uncomfortable speech.
This approach, while never broadly advocated for, does have some support from Judge Alex Kozinski of the Ninth Circuit. In his dissent in Berger, Judge Kozinski argued that “[c]itizens visiting the Center also have First Amendment rights: to enjoy the arts, music and programs offered there.”
This captive audience approach would also yield results more in line with what one would expect and desire doctrine to produce within the categorical framework of panhandling laws:
- Aggressive-begging statutes that targeted panhandlers who make their audiences captive would possess a chance of passing strict scrutiny.
- Extremely specific location bans in places like subway cars
or lines for popular attractions where audiences cannot avoid panhandling would also stand a chance at surviving such a balancing test regardless of whether or not those venues were public or nonpublic forums. More general location bans, such as those in a popular area of town, would fail because it would ensnare panhandlers who did not create a captive environment.
- Blanket bans, which would prevent panhandling that did not create a captive audience, would fail constitutional challenges.
This Note is under no Pollyannaish notion that it is extremely probable courts would adopt the captive audience doctrine to rule panhandling laws constitutional. McCullen v. Coakley seemingly has scaled back the importance of captive audience rights. McCullen, however, pertained to a wide-open sidewalk where people could walk away after a short amount of time. Aggressive panhandling situations could certainly involve a more “captive audience.” Furthermore, the issue in McCullen was whether the protesters had the right to protest in front of the clinic at all—not whether they were prohibited from certain abusive language or scare tactics.
And using the captive audience doctrine is more attractive when considering the alternative methods to saving panhandling regulations.
For example, some may propose that an approach to preserve regulations after Reed would be the so-called secondary-effects doctrine,
which allows for a court to treat a regulation as content neutral if it is aimed at the secondary effects of the speech, such as increasing crime rates or other threats to public safety.
This doctrine has its roots—and is almost exclusively applied—in the context of strip clubs and other adult-entertainment venues.
In addition to the fact that it is unlikely the court will explicitly expand the secondary-effects doctrine beyond the purview of sexual speech, panhandling laws directly target the act and conduct of panhandling and the direct risk that the speech will involve possible fraud or duress, not incidental crimes that panhandling would encourage. Furthermore, it seems impossible to prove that panhandling is the cause of increased crime in an area. A large number of tourists or poor people are in conditions where both panhandling and other crimes thrive, but that does not mean that panhandling is the cause of those crimes. Finally, after Reed it is still an open question if the secondary-effects doctrine remains relevant in determining content-based speech regulations.
Another likely avenue cities may look to in order to continue regulating panhandling after Reed is that of the nonpublic forum.
Unlike regulations for public forums, laws modifying nonpublic forums only need to avoid viewpoint discrimination and be reasonable.
New York City’s ban on begging on the subways is therefore likely constitutional, even after Reed.
Cities may begin to adopt a strategy of using nonpublic forums, or carefully constructed designated public forums,
to enforce at least some of their previously unconstitutional bans. Indeed, New York City is considering assigning large portions of Times Square as either “civic zones” or “flow zones” where panhandling is not allowed, while assigning other parts of the square as “activity zones.”
But using nonpublic forums as a way to curb unwanted panhandling is far from an ideal solution. Not only is it difficult for a city to say that much of its public space is not a public forum, but if a city could carry out the difficult task of deeming much of its space nonpublic forums, it would have further latitude to create panhandling and other speech laws. If this were to come to pass, Reed would have the unintended consequences of removing public space and creating more speech regulation as cities are forced to resort to other means to pass laws on panhandling.
Unlike the secondary-effects doctrine or using nonpublic forums, the captive audience doctrine allows for transparency and honesty among the courts concerning First Amendment rights. Using such an approach will allow for normative choices about what First Amendment rights are important in our society as opposed to a bright-line rule that invalidates virtually all panhandling regulation and ignores the fact that both listeners and speakers have constitutional rights.
Panhandling, while never explicitly recognized as protected speech by the Supreme Court, has steadily gained acceptance throughout appellate courts as speech covered under the First Amendment.
The circuit courts did not agree, however, on how exactly to define those protections or whether to treat panhandling regulations as content based or content neutral. Justice Thomas’s new two-step test in Reed v. Town of Gilbert seems to answer many of those questions, creating a definition for content-based laws that will likely result in many panhandling regulations being ruled content based and therefore struck down under the exacting requirements of strict scrutiny.
Already, several panhandling regulations have been ruled as content based and unconstitutional under the Reed framework.
In her Reed v. Town of Gilbert concurrence, Justice Kagan expressed concern about the invalidation of entirely reasonable laws under Justice Thomas’s new two-step test to determine content neutrality.
While certain panhandling laws are unreasonable restrictions on free speech, carefully tailored location and aggressive-panhandling bans that protect those who are captive to panhandlers seem to be the exact type of laws Justice Kagan was worried about. The solution to Reed’s shift in the doctrinal landscape is to analyze begging laws under strict scrutiny but also to balance the rights of those speaking with the fundamental First Amendment rights of their captive audiences. By doing this, courts can honor the listener’s right not to have to endure harassing speech, value and protect the speaker’s First Amendment rights, and allow for the streets of America’s cities to be both pleasant thoroughfares and meaningful forums for expression.