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Superior Court Judge Says Panhandling Laws Violate Free Speech

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Photo by Craig Tuten.
Photo by Craig Tuten.

An Alaska Superior Court judge struck down an Anchorage anti-panhandling law last month while upholding a controversial law against sitting on municipality sidewalks.

The case is logged as Ballas v. Municipality of Anchorage after lead plaintiff Teeka Ballas, a street musician and performance artist. Joining Ballas in the suit were Libertarian Scott Kohlhaas, who lost in the August U.S. Senate primary, Ruth Sheridan, Susan Bright, and their organization, Alaskans for Peace and Justice, as well as former write-in candidate for Anchorage Assembly Nick Moe. UNITE HERE Local 878 and the Alaska AFL-CIO also joined the plaintiffs.  They were represented by Joshua Decker of the ACLU of Alaska.

In its complaint, the ACLU described the passage of the two laws in November 2011.  Mayor Dan Sullivan proposed the original ordinance following protests by John Martin, a homeless man disturbed by the Sullivan Administration’s treatment of the homeless in Anchorage.  Martin sought to meet with Sullivan about the issue, but Sullivan said at a press conference that Martin would have to “clean up and make himself presentable as a good self-worthy human being would do” before such a meeting could occur.

Sullivan couched his ordinance as a matter of public safety in a memo to the assembly, but Municipal Attorney Dennis Wheeler told Alaska Dispatch News (ADN) that the ordinance was specifically drafted because there had been no legal basis to remove Martin from the sidewalk outside City Hall.

During debate on the ordinance, Assemblyman Dick Traini asked Wheeler, “Dennis, since this will end up probably in the court system if it’s approved, if the ACLU takes it to court, is it defensible from your point of view?”

Wheeler responded that the ordinance had been “run by the ACLU… They did not have any problems with it.”

In fact, the Municipality had not contacted the ACLU about the ordinance, and the ACLU had not provided comment on it.  Wheeler later corrected his statement in an email, but the ordinance had already passed the assembly.  The assembly eventually repealed the section on sidewalk-sitting, but Sullivan used his veto to maintain the new law.

The ACLU claimed that the laws constituted violations of free expression, peaceable assembly, and due process.

Ballas and the other plaintiffs filed suit on January 31, 2013.

Ruling Against the City

In his November 24, 2014 ruling, Judge John Suddock dealt first with the panhandling law, the over-breadth of which Suddock described as “palpable.”  The law restricts active solicitation of donations to daylight hours and locations outside downtown and away from bus stops, ATMs, stop lights, and stop signs. “However,” reads Anchorage Municipal Code 14.70.160, “panhandling shall not include the act of passively standing or sitting nor performing music, singing or other street performance with a sign or other indication that a donation is being sought, without any vocal request other than in response to an inquiry by another person.

Suddock found that Anchorage’s law was closely-modeled on a draft ordinance suggested by the Criminal Justice Legal Foundation. That draft can be read at the end of a pamphlet titled, “A Guide to Regulating Panhandling.” The reason it is so broad, writes Suddock, is because its author, Kent Scheidegger, was writing with the intent of content-neutrality.  In other words, by not targeting a specific type of solicitation, perhaps the draft could escape legal challenge.

The Alaska Supreme Court has issued few decisions on solicitation, writes Suddock, and federal courts have been split.  The Ninth Circuit, of which Alaska is part and which Suddock points out would hold precedent had Ballas filed in federal court, struck down an ordinance in Seattle preventing busking at Seattle Center.

However, Judge Frank Easterbrook upheld an ordinance very similar to that of Anchorage in the Seventh Circuit. (Suddock noted in a footnote that Easterbrook owns a cabin in Girdwood.)

The plaintiffs and the Municipality agreed that all forms of panhandling, including political and religious solicitation, constitute free speech.  Yet the ordinance makes these forms of speech impractical.  Downtown, with its high pedestrian traffic, is virtually off-limits. Suddock wrote:

[W]hile the ordinance does provide an allowed form of downtown begging, the exception is more illusory than real. A panhandler can passively stand- not walk- with a sign or a tin cup, waiting for passers-by to donate. A panhandler with an agenda including social service agency appointments, substance abuse treatment, and details of daily survival must instead dedicate full attention to standing with a humiliating sign for the privilege of being, at best, largely ignored. While some endure such humiliation by standing with signs at intersections to solicit passing cars, the panhandling ordinance expressly forbids this. Though it purports to allow a form of begging, the ordinance is, in effect, a near-complete ban on begging in the downtown area. Thus the magnitude of the limitation of constitutionally protected begging is quite sweeping.

Suddock lamented that “ordinary and benign spoken requests that occur regularly on the streets of Anchorage” are forbidden downtown.  “Alas, the Salvation Army Santa may no longer ring the bell outside Nordstrom, because Santa may only solicit while standing passively. Reductio ad absurdum,” Suddock continued, “a boy may no longer ask his grandfather for a dollar on a downtown sidewalk; one friend may not ask another for a cigarette.”

Suddock leveled his harshest critique at Sullivan’s claims that the ordinance was meant to “protect the aesthetics and significant economic vitality of the downtown central business district,” as well as, “public health, safety and welfare.”  In a passage seemingly written directly to the mayor himself, Suddock wrote:

It cannot rationally be said that public health or safety is at risk from political organizers soliciting donations at rallies, or picketers requesting income-replacement contributions to their union. Stifling such core content-based speech has no rational relation to a permissible government purpose.  The inclusion of this class of speech in the panhandling ordinance dooms it. Nor can non-aggressive panhandlers be said to constitute a real public safety hazard, especially given that the ordinance permits non-aggressive panhandling throughout all but downtown Anchorage during daylight hours. If panhandling is a per se threat to public safety, why is it permitted in downtown Eagle River? The failure of the ordinance to narrow its focus to aggressive panhandling robs it of viability as a health and safety measure as to much of the ordinance’s content.

Finally, begging cannot constitutionally be eliminated in the amorphous interest in economic vitality downtown. Public speech on a sidewalk, a classic public forum, is not always for the delicate. An agitated expositor may warn of perdition. A profane tee-shirt may induce a blush. The f-bomb gets dropped. A desperate or thirsty citizen may beg. It is undeniable that even the most non-threatening panhandling annoys some who feel that all can earn a living through toil, or that the prosperous should be immune from approach by unkempt denizens perceived as social inferiors. Perhaps panhandling induces a subtle form of guilt in some. Or many reasonably believe panhandling is counter to the best interests of the panhandler. But Alaska’s free speech clause prevents governments from muzzling a disfavored citizenry merely to augment the tranquility of a favored citizenry, in the interests of enhancing the commercial environment. Because the panhandling ordinance casts its net too broadly, and fails to focus exclusively on the genuine social problem of aggressive panhandling, it violates the free speech clause of Alaska’s Constitution.

Some Questions Unanswered

Suddock ruled the panhandling law unconstitutional, but he suggested that if it went before the Alaska Supreme Court, the Court would consider fundraising and begging separately.

The Court has found that “the solicitation of funds for political purposes is strict scrutiny speech,” meaning the government has a substantial burden in proving a compelling interest in restricting that speech.  Suddock suggested the government’s threshold would be lower for restricting begging:

When plaintiff Kohlhaas asks for contributions to his Libertarian party, he is implicitly communicating that the party’s policies are sound and worthy of support. The same can be said of social-cause and religious fundraising. In contrast, any message conveyed by classic begging, such as any suggestion that income inequality is unjust, is so highly attenuated as to be all but non-existent. Therefore, it is conceivable that the Alaska Supreme Court would accept a less weighty governmental interest in limiting begging speech, and tolerate a less narrow focus on any begging- created harms, as compared to political fundraising not implicating such harms.

Similar logic led Suddock to affirmatively answer the other question before him — whether the Municipality could legally restrict sitting on the sidewalk.  Though he noted Ballas had sat on the sidewalk as part of Occupy protests, Suddock wrote that “sitting is not commonly considered expressive… The vast majority of times when a person takes a seat on the sidewalk, the person is trying to rest or find a convenient spot from which to people-watch. Sitting, like eating or breathing, is so basic to our lives as humans that it is unlikely to ever become commonly associated with expression.”

The Ninth Circuit took the same position in Roulette v. City of Seattle.

The ACLU filed a motion for reconsideration Friday.  Citing Marks v. City of Anchorage, a challenge to a municipal ordinance outlawing, in part, “unreasonable noise or offensively coarse utterance,” the ACLU’s Decker wrote, “‘mere public intolerance or animosity cannot be the basis for abridgement of these constitutional freedoms,’ and Anchorage may not outlaw sitting on the sidewalks simply because its exercise may be annoying to some people.'”

Decker noted that Suddock included Sullivan’s “irritation” at John Martin as a genesis of the sidewalk ordinance in his factual findings.  This “irritation,” wrote Decker, was the sole reason for the law, since the city did no pedestrian traffic studies and received no complaints about people on sidewalks.

Without any other basis, Decker argues the ordinance is a facial violation of the Alaska Constitution’s free speech clause.

Suddock should render a decision on the motion for reconsideration within a month, Decker said in an email.  Should Suddock rule against the plaintiffs on the sidewalk law, the ACLU may appeal to the Alaska Supreme Court.