By Rebecca Glenberg, Legal Director
Yesterday, a federal court in Charlottesville heard arguments in our lawsuit on behalf of two homeless plaintiffs challenging an ordinance that limits their ability to panhandle on Charlottesville’s downtown mall. The outcome of the case will add to a growing body of law about just how far local governments may go in their efforts to keep the homeless out of sight and out of mind.
Panhandlers make many of us uncomfortable. We do not like to see our fellow citizens in such dire straits that they must beg for money, when we ourselves are comfortable. We do not like to be reminded of our society’s collective failure to meet our responsibilities to the most vulnerable among us. And we do not like being asked to part with what we consider to be our well-earned dollars for the benefit of a stranger.
As a result, many city governments do everything they can to drive panhandlers out of sight—especially in areas with shops and restaurants that depend on patrons feeling welcome and comfortable in the neighborhood.
Charlottesville’s downtown pedestrian mall is just such a neighborhood. Lined with shops and restaurants, it is a vibrant setting for street vendors, artists, and musicians. Crowds of residents and tourists amble up and down. It is a good place to ask for money.
In 2010, the City of Charlottesville passed an ordinance that prohibits begging within 50 feet of either of the two streets that intersect the mall and are open to vehicular traffic. But begging is a form of speech protected by the First Amendment. It is unconstitutional to ban such speech in a public forum like the downtown mall unless the government can show a strong connection between the regulation and the legitimate interests the government seeks to protect.
At yesterday’s court hearing, a lawyer for the City argued that the 50-foot buffer zone is a public safety requirement. According to this theory, pedestrians who are approached by beggars within 50 feet of an intersection are liable to be so distracted and intimidated that they wander into the street without looking and get struck by a vehicle.
Aside from the inherent unlikelihood of that scenario, it fails to justify the ordinance’s prohibition of all panhandling – and only panhandling – within the buffer zone. First, another ordinance already prohibits solicitors from (1) making physical contact, (2) approaching or following the person being solicited in an intimidating fashion, (3) blocking the safe or free passage of the person being solicited or requiring the person to take evasive action to avoid physical contact, or (4) using language or gestures likely to cause a reasonably person to fear harm or to feel intimidated into giving a donation. This provision eliminates any conduct by panhandlers that could logically cause a pedestrian to take extreme evasive actions that might somehow put them in danger.
Second, there is plenty of speech other than panhandling that could cause the same kind of distraction or intimidation. For example, persistent religious haranguing or aggressive and unwanted sexual overtures may easily intimidate passers-by and make them anxious to avoid further contact. But banning all religious or sexual speech within 50 feet of an intersection would obviously be unconstitutional. It is equally unconstitutional to ban all panhandling just because people might want to avoid it.
Regardless of how the judge rules in this case, Charlottesville residents should take a long hard look at the reasons behind this ordinance. As Thomas Jefferson—Charlottesville’s most prominent citizen—understood, a measure of discomfort is a small price to pay for freedom of speech.