COURTS | Patrick Yeagle
Springfield’s panhandling ordinance is unconstitutional, according to a court decision released last week.
The decision means panhandlers can once again ask for money downtown with their voices instead of just signs. It’s a victory for freedom of speech, but some people see it as a setback.
The case started in September 2013, when Springfield panhandlers Don Norton and Karen Otterson filed a class action lawsuit against the City of Springfield, alleging the city’s anti-panhandling ordinance violates their First Amendment right to free speech. They also claimed certain Springfield police officers harassed them outside of the downtown, intentionally misapplying a state law regarding business solicitation along roadways.
The city’s ordinance, passed in 2007, prohibited panhandlers from making vocal appeals for an immediate donation of money in the downtown area. Panhandling with a sign was specifically exempted from the ban, as was performing for money. Norton and Otterson challenged the ordinance in federal court, claiming it was a “content-based restriction” which unfairly targeted them because of their message.
In October 2013, Judge Richard Mills of the federal Seventh Circuit court in Springfield declined to order the city to stop enforcing its ordinance while the lawsuit was pending. Mills reasoned that he didn’t have enough information to tell whether the city meant to specifically target panhandlers, even though the ordinance was titled “panhandling.”
Norton and Otterson appealed to the Seventh Circuit Court of Appeals in Chicago, which initially upheld the city’s ban. The three-member panel ruled 2-1 in October 2014 that the panhandling ban represented a “legitimate government interest,” which means that whether or not the ordinance regulated the panhandlers’ message, the regulation was justified in the public’s interest.
Norton and Otterson asked for a rehearing before the entire 10-judge Court of Appeals, but it seemed like a long shot.
Then came the U.S. Supreme Court’s decision in a case known as Reed v. Gilbert, destined to become a landmark First Amendment case because of its broad protection of freedom of speech. Prior to Reed, proving that a government tried to silence someone because of their message required also proving that the legislature – or city council, as the case may be – was hostile toward the message. Reed arose in Gilbert, Arizona, a suburb of Phoenix, where the city council tried to regulate one church’s signs more heavily than signs posted by others. The case prompted the Supreme Court to do away with the “legislative animosity” test for free speech, instead instituting a simpler, less onerous test that amounts to, “Does the level of regulation depend on the message?” The Seventh Circuit Court of Appeals case applied that new test to the Springfield panhandling case and reached a new decision: the city’s ban was based on the message of the panhandlers and therefore was unconstitutional. The appellate court ordered Judge Mills in Springfield to order an injunction barring the city from enforcing its ordinance.
Mark Weinberg, Norton and Otterson’s attorney from Chicago, says the case is a strong victory for free speech because it was very difficult to prove legislative animosity toward a particular message.
“A legislature can always hide their intent,” he said, adding that the court can now address the other issues raised in the case, such as the alleged harassment of panhandlers by Springfield police, the alleged willful misapplication of state law and any potential damages arising from the city’s unconstitutional ban.
Victoria Ringer, executive director of the nonprofit Downtown Springfield, Inc., says that while panhandlers do have rights, so do downtown businesses.
“They want to be able to offer a professional, safe level of comfort for customers and employees,” she said. “The people who are panhandling are doing it as professionals, and we don’t think it’s fair to be doing that in an area where other businesses which are paying taxes are trying to make a living. It’s a business to (panhandle), and when they’re impacting other businesses, that’s a problem.”
Ringer says a consistent police presence downtown is the only way to curb panhandling, although she says she’s not asking for police to strong-arm panhandlers.
Don Norton, one of the panhandlers who filed the lawsuit, says he has spoken with several downtown businesses and found that many don’t mind the presence of panhandlers as long as they’re respectful.
“A lot of them stated that, yes, there was a problem,” he said. “But also after addressing it with the problematic people, things calmed down.”
Norton says he and Otterson haven’t panhandled downtown since starting their fight against the city’s ordinance, but he plans to try again to test enforcement.
Former Springfield alderman Sam Cahnman, who helped pass the panhandling ordinance while in office, notes that the appellate court’s decision doesn’t affect the part of the ordinance dealing with “aggressive panhandling.” He says that at the time the ordinance was passed, courts allowed municipalities to ban panhandling at certain times and in certain places. He says that, unlike the Reed decision, Springfield’s ordinance was meant to regulate behavior, not speech. He points to a separate Supreme Court decision that allowed the U.S. Postal Service to regulate solicitations on postal premises.
“When we passed the downtown panhandling ban, the council was presented with a problem in which tourists and local residents felt intimidated by repeated solicitations for money from panhandlers downtown,” Cahnman said. “The ordinance was passed to stop or reduce this behavior, not to infringe on anyone’s free speech.”
Cahnman urged the city to appeal the decision to the full Court of Appeals and even to the Supreme Court, if necessary. He also suggests requiring panhandlers to register with the city clerk and carry a permit with their photograph.
Springfield corporation counsel Jim Zerkle could not be reached for comment.
Weinberg acknowledges that some people see panhandlers as a nuisance, but he says that’s no reason to limit their free speech.
“Panhandlers’ mere presence makes some people uncomfortable,” he said, “but if it was a Girl Scout selling cookies, nobody would think twice.”
Additionally, he said, the city is still free to ban panhandling near ATMs, bus stops and outdoor dining venues.
“The law does not give panhandlers carte blanche to do whatever they want,” Weinberg said. “There is still plenty of leeway to protect against misbehavior by panhandlers.”
Asked why he panhandles, Norton says a past DUI conviction from 2000 has prevented him from finding steady work. Still, he mows lawns and does odd jobs for a handful of construction companies. For him, panhandling is a way of making ends meet.
He’s used to derogatory comments from people who see panhandlers as lazy or entitled.
“I ask them, ‘What kind of work do you do? Why not give me a job?’ ” he said. “Let me show you what I can do.”
Contact Patrick Yeagle at [email protected].