January 2016 - Parks & Recreation - 32

L AW R E V I E W

The city, having officially put
forward its reasons for the downtown panhandling provisions, cannot add to those reasons in litigation.
The downtown panhandling provisions were passed to promote tourism, not public safety as such, and
consequently do not further a compelling state interest. They therefore
cannot survive strict scrutiny under
the First Amendment.

guishes between some solicitations and
others based on the content of that solicitation. A person following someone
to ask for a donation would be treated
as illegally panhandling under the
aggressive panhandling provisions,
whereas someone following another
asking for a petition signature would
be permitted to continue exercising
such a right to political expression.
Having found the aggressive panhan-

The court acknowledged the First Amendment
did not require the city to have " exhausted every
enforcement strategy and demonstrated failure
before passing the ordinance. "
Aggressive Panhandling
As noted by the federal district court,
" the aggressive panhandling provisions are governed by the same First
Amendment framework as are the
downtown panhandling provisions. "
In the opinion of the court, " the
aggressive panhandling provisions
regulate expressive conduct that is
protected by the First Amendment. "
Moreover, like the downtown provisions, the court found the aggressive
panhandling provisions were similarly
content-based regulations.
An aggressive, perhaps disconcerting and indeed frightening, panhandler still conveys messages related to
need and deprivation or, in the city's
characterization, about the alternative lifestyle of panhandling. And, as
with the downtown provisions, these
are content-based regulations of activity in public fora. The same definition of " panhandling " is employed
in both, regulating only requests for
immediate donations.
This definition, on its face, distin30	 Parks & Recreation

dling provisions to be content-based,
the federal district court then considered whether these regulations were
" the least restrictive means for achieving a compelling state interest. " Unlike the less-than-compelling interest
in tourism for the downtown panhandling provisions, the court found " the
aggressive panhandling provisions
were enacted in furtherance of a compelling state interest: public safety. " As
characterized by the court, public safety is " the heart of government's function. " Moreover, plaintiffs conceded
that " preventing 'truly aggressive behavior,' such as unwanted touching, is
a compelling interest. "
Accordingly, given the existence of
a compelling state interest in public
safety, the issue before the federal
district court was " whether the aggressive panhandling provisions are
properly fashioned " to achieve this
goal of public safety.
In this particular instance, plaintiffs
had contended the aggressive panhandling provisions were not the least re-

| J A N UA R Y 2 0 1 6 | W W W. N R PA . O R G

strictive means available for achieving
the goal of public safety. In so doing,
plaintiffs claimed the city had " failed
to try a less speech-restrictive alternative - better enforcing existing laws,
such as disorderly conduct or assault
- before enacting the aggressive panhandling ordinances. " According to
plaintiffs, the city needed to " show
the failure of a stepped-up approach
to the enforcement of existing laws before it could constitutionally enact an
anti-panhandling ordinance. "
As noted by the federal district
court, " the justification for a restriction on speech cannot simply
allege without evidence that other
approaches 'do not work,' nor is it
enough to say that a speech restriction would be easier to enforce. " That
being said, the court acknowledged
the First Amendment did not require
the city to have " exhausted every enforcement strategy and demonstrated
failure before passing the ordinance. "
On the contrary, the court found the
city could simply " demonstrate that
alternative measures that burden substantially less speech would fail to
achieve the government interests. "
According to the court, the city could
" accomplish this either by trying or
adequately explaining why it did not
try alternative approaches. "
In this particular instance, the federal court found the city had clearly " attempted to use existing enforcement
techniques and yet still plausibly contends that it has a public safety problem. " According to the court, the city
was indeed " free to try new approaches
to protecting public safety, including by
passing an ordinance prohibiting aggressive panhandling, so long as that
ordinance satisfies the requirements of
the First Amendment. " In the opinion
of the federal court, this particular ordinance was unconstitutional because
January 2016 - Parks & Recreation

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