FAN 54 (First Amendment News) Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case
Somehow this one slipped by me. Thanks to Joseph P. Rapisarda, Jr. (the county attorney in the case), however, I now know of it and of Chief Judge William Traxler’s opinion in Reynolds v. Middleton (4th Cir., Feb. 24, 2015).
The case involves a homeless man (Robert S. Reynolds) who begged for money in Henrico County, Virginia. (A panhandling First Amendment case is currently pending before the Supreme Court: Thayer v. City of Worcester. The petition was distributed for Conference of January 9, 2015.)
In a world where commercial speech is the coin of the realm, Mr. Reynolds looked to the First Amendment to aid the cause of his life-sustaining speech. To that end, he challenged a newly enacted local ordinance, which provides:
Sec. 22-195. Distributing handbills, soliciting contributions or selling merchandise or services in highway.
(a) It shall be unlawful for any person while in the highway to:
(1) Distribute handbills, leaflets, bulletins, literature, advertisements or similar material to the drivers of motor vehicles or passengers therein on highways located within the county.
(2) Solicit contributions of any nature from the drivers of motor vehicles or passengers therein on highways located within the county.
(3) Sell or attempt to sell merchandise or services to the drivers of motor vehicles or passengers therein on highways located within in the county.
(b) For purposes of this section, the term “highway” means the entire width of a road or street that is improved, designed, or ordinarily used for vehicular travel and the shoulder, the median, and the area between the travel lane and the back of the curb.
At first he was unsuccessful; his case was dismissed by a federal judge. Thanks to the appellate work of Brian Timothy Burgess (a former Sotomayor law clerk) and the ACLU, Reynolds did rather well in the Fourth Circuit (see CBS video clip). Here are a few excerpts from Chief Judge Traxler’s opinion:
- There is no question that panhandling and solicitation of charitable contributions are protected speech. See Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013). There is likewise no question that public streets and medians qualify as “traditional public forum[s].” Id. at 555; see Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en banc) (“Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora.”).
- The government’s power to regulate speech in a traditional public forum is “limited, though not foreclosed.” Clatterbuck, 708 F.3d at 555. Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny — that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert. denied, 135 S. Ct. 183 (2014). A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)
- In our view . . . the Supreme Court’s recent decision in McCullen v. Coakley clarifies what is necessary to carry the government’s burden of proof under intermediate scrutiny. McCullen involved a First Amendment challenge to a Massachusetts buffer-zone statute that prohibited standing on a “public way or sidewalk within 35 feet of an entrance or driveway” of an abortion clinic. McCullen, 134 S. Ct. at 2525. After a bench trial on stipulated facts, the district court upheld the statute, and the First Circuit affirmed. The Supreme Court applied intermediate scrutiny — the same standard we apply in this case — and reversed.
- We draw several lessons from the Court’s decision in McCullen. First, the Court’s discussion of whether the statute furthered an important governmental interest confirms that the existence of a governmental interest may be established by reference to case law. Second, the Court’s flat declaration that “[t]he buffer zones clearly serve these interests” indicates that objective evidence is not always required to show that a speech restriction furthers the government’s interests. Finally, the Court’s rejection of the Commonwealth’s narrow-tailoring arguments makes it clear that intermediate scrutiny does indeed require the government to present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary; argument unsupported by the evidence will not suffice to carry the government’s burden.
The Chief Judge concluded his opinion as follows:
Although we have concluded that the County’s evidence failed to establish that the Amended Ordinance was narrowly tailored, we believe the proper course is to vacate and remand. Our analysis in this case was driven by the Supreme Court’s decision in McCullen, which was issued after the district court’s ruling in this case. As we have explained, McCullen clarified the law governing the evidentiary showing required of a governmental entity seeking to uphold a speech restriction under intermediate scrutiny. Because the parties did not have McCullen’s guidance at the time they prepared their cross — motions for summary judgment, we believe the County should have an opportunity to gather and present evidence sufficient to satisfy McCullen’s standard. Accordingly, we hereby vacate the district court’s order granting summary judgment to the County and remand for further factual development and additional proceedings as may be required (footnote omitted).
Note: Since “the Henrico ordinance has not been invalidated,” said Burgess, “panhandlers still could be criminally charged.”
→ See A. Barton Hinkle, “There’s No Begging Exception to the First Amendment,” Reason.com, March 4, 2015
→ See “Arizona Senate Debates Panhandling Bill,” NAZToday, March 25, 2015 (YouTube video)
→ See also Sara Rankin, “A Homeless Bill of Rights,” Seton Hall Law Review (forthcoming, 2015).
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