Appeals court upholds city’s panhandling ban
Panhandlers vow continued fight
SPEECH | Patrick Yeagle
A federal appeals court upheld the City of Springfield’s anti-panhandling ordinance last week, but the panhandlers who challenged the ordinance aren’t giving up.
In a 2-1 decision released Sept. 25, the United States Court of Appeals for the Seventh Circuit ruled that Springfield’s ordinance does not violate the First Amendment right to free speech. The plaintiffs, a pair of Springfield panhandlers, sued the city in September 2013, claiming the ordinance is unconstitutional and is used to harass panhandlers.
At the core of the case is whether the city’s ordinance is “content-based” or “contentneutral.” Mark Weinberg, a Chicago attorney representing panhandlers Don Norton and Karen Otterson in the case, says a contentbased regulation can be identified “when you have to hear the content of the message to make a determination of whether it is permissible under the regulation.”
Springfield’s anti-panhandling ordinance prohibits “vocal appeals” for an immediate donation of money or other gratuity within the historic downtown area. The rule allows signs requesting donations, however. In their lawsuit, Norton and Otterson claimed Springfield police had illegally ticketed them under the ordinance outside of downtown and even when they had remained silent.
Content-based restrictions are subject to strict scrutiny in court because they inherently discriminate on the basis of the speaker’s message. For example, the hate group Westboro Baptist Church won a free speech case before the U.S. Supreme Court in 2011 because the court reasoned that it was Westboro’s message – not its practice of holding signs in public – that caused public outrage.
At an April 2014 court hearing in Chicago about Springfield’s ordinance, Weinberg argued that the ordinance discriminates against panhandlers while not banning other types of vocal solicitations.
“The city knew they couldn’t ban panhandling outright, so they put up a big burden to obstruct it,” Weinberg said.
Judge Frank Hoover Easterbrook penned the majority opinion in the case, saying although he wasn’t sure whether the ordinance was content-based or not, the regulation stemmed from a legitimate government interest.
“It is hard to see an anti-panhandling ordinance as entailing … discrimination,” Easterbrook wrote in the majority opinion.
“ ‘Give me money right now’ does not express an idea or message about politics, the arts or any other topic on which the government may seek to throttle expression in order to protect itself or a favored set of speakers.”
The dissenting opinion, penned by conservative Judge Daniel Manion, said the majority’s decision is “alien to our First Amendment jurisprudence.” Manion reasoned that a police officer enforcing the ordinance would have to hear the content of a panhandler’s speech in order to know whether the ordinance was violated.
“That is precisely the sort of situation that the Supreme Court said involves a content-based regulation,” he said.
Ward 5 Ald. Sam Cahnman, who sponsored the ordinance in the Springfield City Council, called the court’s majority decision “well reasoned.”
“As the sponsor of the challenged ordinance, the intent of it was simply for the safety and comfort of those visiting our city’s many tourist attractions or simply going about their business in the most heavily concentrated pedestrian area of our city, which the Court pointed out is only two percent of our city’s area,” Cahnman said. “We did not want to infringe on anyone’s First Amendment right to free speech, and two courts have now agreed the city council did not. This decision insures that residents, tourists and other visitors will not be harassed while enjoying and using the many fine attractions and businesses in our growing downtown – so important to a city like ours, with an economy so dependent on tourism.”
Despite the decision, Weinberg says he will file a motion to have the entire 10-judge panel of the appeals court rehear the case. He calls it a long shot, however, because the court only grants a handful of rehearings each year, and Manion doesn’t have a vote as a senior status judge, which amounts to being semi-retired. If no rehearing is granted, Weinberg plans to appeal to the U.S. Supreme Court. He says the nation’s highest court has never taken a panhandling case, but it has dealt with cases that had similar issues.
“In my mind, the analysis here is really straightforward,” Weinberg said. “The law seems pretty clear that in a public forum like a sidewalk or a park, the government cannot regulate the content of speech. This opinion seems to undermine that basic structure and principle.”
Contact Patrick Yeagle at pyeagle@illinoistimes.com.
