January 2016 - Parks & Recreation - 30

L AW R E V I E W

A law targeted at specific subject
matter is content-based even if it
does not discriminate among viewpoints within that subject matter. If
a law is content-based on its face, it is
immaterial whether the government
had a benign motive, content-neutral justification or " lack of animus
toward the ideas contained " in the
regulated speech.
Applying these principles to the
challenged ordinance, the federal district court found the " downtown provisions are plainly content-based. "
Specifically, the court found " the
city's definition of panhandling targets a particular form of expressive
speech - the solicitation of immediate charitable donations - and
applies its regulatory scheme only to
that subject matter. "
On its face, the ordinance distinguishes solicitations for immediate

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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.
Further, the federal district court
noted, " a regulation is content-based
if it requires enforcement authorities
to examine the content of the message that is conveyed to determine
whether a violation has occurred. "
In this particular instance, the court
found enforcement of Lowell's
downtown panhandling regulations
was necessarily content-based.
Under the provisions, a police officer would have to listen to a person's
solicitation and determine whether he was asking for an immediate
donation before finding a violation.

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Moreover, this inquiry into content
would always be necessary. Even
where a person was sitting in the
historic district with a sign reading,
" hungry and homeless, " and speaking to every stranger who walked by,
the police officer would still have to
determine whether those conversations were prohibited " vocal requests "
for money. Neither a pleasant " good
morning " nor an aggressive political
diatribe unrelated to a solicitation
would be impermissible, while a
" please give, " or an " I'm a veteran, "
would be.
Accordingly, the federal district
court concluded " the downtown
panhandling provisions are thus
content-based not only linguistically, but also in their invitation to content-based enforcement choices. "
Compelling Tourism Interest?
Having found " the downtown provisions are content-based, " the federal
district court acknowledged constitutional regulations " must be the least
restrictive means of achieving a compelling state interest. " As noted by
the court, content-based regulations
are " presumptively invalid. " Applying an " exacting standard " of strict
scrutiny analysis, the federal court
would first identify " the compelling
interest to which a regulation must be
tailored " to be achieved.
In this particular interest, the stated
purpose of the downtown provisions
for the city of Lowell was to pursue
" tourism and economic development. "
Specifically, the preamble to the challenged ordinance provided as follows:
Tourism is one of Lowell's most
important economic industries; and
the downtown historic district is essential for the Lowell tourism experience; and the city has a compelling
interest in providing a safe, pleasant

January 2016 - Parks & Recreation

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