January 2016 - Parks & Recreation - 29

olated their First Amendment right
to freedom of speech.
Since the city enacted the ordinance,
plaintiffs have avoided panhandling
downtown because they have been
afraid of arrest. Plaintiffs petitioned
the federal district court to declare the
Lowell panhandling ordinance unconstitutional and issue a permanent injunction against its enforcement.
The challenged ordinance was enacted in response to a belief among city
officials, residents and local stakeholders that panhandling had become more
common and more aggressive.
The ordinance defined " panhandling " as " the solicitation of any
item of value through a request for an
immediate donation. " Panhandling
under the ordinance also included
the " sale of an item for an inflated
amount, such that a reasonable person would understand it to be in substance a donation. " The ordinance,
however, permitted panhandling that
" involves only 'passively' standing, sitting or performing music. "
These passive panhandlers may
hold a sign asking for a donation,
but may not make any " vocal request " except in response to an inquiry. These restrictions cover an extensive area - some 400 acres - which
includes some of the most-trafficked
areas in the city and a number of important government sites.
Panhandling Constitutional
Protection?
As noted by the federal district
court, " begging is a form of solicitation " that is protected by the First
Amendment. Similarly, the court
found panhandling as defined in the
challenged ordinance was " expressive activity within the scope of the
First Amendment. "
Solicitations of money by orga	

nized charities are within the protection of the First Amendment. This
protection extends to those soliciting
funds on their own behalf. People
who panhandle may communicate
important political or social messages
in their appeals for money, explaining their conditions related to veteran
status, homelessness, unemployment

Rather, it claims, they represent a
" raucous alternative culture, " both
" festive and sinister, " engaged in " a
war on the public sentiment. "
The federal district court rejected
the city's argument. In the opinion of
the court, " whether or not there has
been a transformation of the culture
of panhandling, the raucous presen-

Plaintiffs petitioned the federal district court
to declare the Lowell panhandling ordinance
unconstitutional and issue a permanent injunction
against its enforcement.
and disability, to name a few.
Plainly, a sign reading " sober, " or
" two children, " conveys a message
about who is deserving of charitable
support, just as a sign reading " God
bless, " expresses a religious message.
Moreover, the federal court acknowledged, " panhandling is an expressive act regardless of what words,
if any, a panhandler speaks. "
Courts have consistently recognized the protected, expressive nature
of panhandling - even the presence
of an unkempt and disheveled person holding out his or her hand or a
cup to receive a donation itself conveys a message of need for support
and assistance.
As described by the court, Lowell
had argued that " modern " panhandling lacks the expressive quality deserving of protection under the First
Amendment.
The city contends that the panhandlers of today are not the " lone
needy person " whose acts might
" keep the issues of poverty and/
or homelessness in the public eye. "

tation of the visions of alternative
cultures in the public sphere is at the
heart of the First Amendment. "
Further, the court noted that the
" First Amendment clearly limits how
panhandling may be regulated. "
The downtown panhandling provisions regulate speech in public fora,
where the government's power to
regulate speech is most constrained.
Sidewalks and parks, both of which
are covered by the downtown provisions, are quintessential public fora.
In public fora, a regulation is
subject to stricter scrutiny if it is
content-based than if it is a content-neutral time, place or manner
regulation, because a content-based
regulation raises a very serious concern that the government is using its
power to tilt public debate in a direction of its choosing.
Accordingly, the federal district
court would determine whether the
challenged ordinance " applies to particular speech because of the topic
discussed or the idea or message expressed, " in this case, panhandling.

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Parks & Recreation

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January 2016 - Parks & Recreation

Table of Contents for the Digital Edition of January 2016 - Parks & Recreation
