The Constitution, the Sidewalk, the Beggar, and the Open Guitar Case

The Center’s critique of Spokane’s proposed new criminal constraints on street solicitors finds numerous First Amendment problems.

In a letter sent last week to Assistant City Attorney Mike Piccolo, the Center for Justice provides a detailed critique of a new slate of proposed city ordinances designed to crack down on panhandlers and even street musicians in downtown Spokane. In short, the Center’s criticisms point to a variety of ways in which the proposed changes to the city’s municipal code would invite challenges under the free speech protections of the First Amendment to the U.S. Constitution. City officials sought the Center’s analysis as the proposed ordinances were slated for a First Reading before the Spokane City Council Monday night.

“In these [draft] ordinances,” wrote CFJ attorney Bonne Beavers and CFJ intern Chris Longman, “the City is largely attempting to curtail one type of speech-begging. The jurisprudence in this country has made it clear that begging is constitutionally protected speech and, although cities may regulate begging on public sidewalks or parks, these regulations must be consistent with First Amendment protections.”

A main thrust of the Center’s criticism is that many of the specific prohibitions being proposed appear to single out begging as opposed to other forms of protected speech, and are thus subject to Constitutional challenge as restricting “content.” But the letter also highlighted problems created in proposals that would target street musicians, by requiring some, but not others, to obtain business licenses at a cost of $60 per year. A main problem with this provision, the letter notes, is that the license requirement is dependent on a distinguishing between “active” and “passive” solicitation.

In this and other areas, CFJ is challenging the vagueness of the draft ordinances and how they could be misapplied in ways that violate First Amendment rights to free speech and against prior restraint.

“The definition of ‘active solicitation,'” wrote Beavers and Longman, “includes using a hat or open guitar case. This would indicate that the ordinance includes any performer who takes steps to actively solicit other than providing something for people to throw money into. It’s hard to imagine a way to ‘passively solicit’ that would not fall within this definition. It would appear then that the ordinance aims at any performer who performs for money without actually saying so.”

“Clearly,” the letter concluded, “the City’s concerns about the impact on begging on economic activity are legitimate. And, just as clearly, the City may regulate this activity, but not in an unequal and unjust manner…We would ask the City to think carefully before enacting criminal laws such as these whose effects fall especially hard on the poor, are exclusive rather than inclusive, and the very opposite of community.”

The full text of the letter can be read here.

SMC 10.10.025 Pedestrian Interference (Ordinance C34337)

Summary: Would make it a misdemeanor offense for a person to “knowingly” obstruct pedestrian or vehicular traffic or “aggressively” solicit.

CFJ critique: Ordinance is over-broad and unreasonable because a “knowing” obstruction is not the same as having the intent to obstruct. Federal Courts have found a person exercising a First Amendment right can knowingly obstruct or interfere with pedestrians so long as he or she does not intend to obstruct. Likewise, while laws can prohibit aggressive solicitation, the language in the proposed ordinance should more clearly adhere to evidence of “intent.”

SMC 10.10.26
Sitting, Lying on Sidewalks in Retail Zone (Ordinance 34338)

Summary: Would make it a misdemeanor to “sit or lie down” on a public sidewalk or sit “upon a blanket, chair, stool, or any other object placed upon a public sidewalk” in the downtown retail area between 7 a.m. and 9 p.m., with medical and other tightly defined exceptions.

CFJ critique: As drafted the proposed ordinance contains no exceptions for protected First Amendment activities and “there may be situations in which a prohibition against sitting or lying impermissibly restricts expressive conduct.”

SMC 10.40.010
Street Performers (Ordinance C34339)

Summary: Establishes the requirement for a regular or temporary license with a “peddler” designation under prescribed circumstances including the selling of food or wares from mobile carts, door-to-door sales, business activities “with no permanent location,” and street performers. Street performers coming under the ordinance’s definition would have to pay $60 a year for their licenses, or a reduced fee of $10 per year if they can provide proof their gross business revenues for a calendar year do not exceed $12,000. Violations are a misdemeanor offense.

CFJ critique: Courts have found that restrictions on First Amendment protected speech must be content-neutral (meaning they don’t discriminate on the basis of a person’s message). Because the ordinance’s license requirement is dependent upon whether a street performer engages in “active” solicitation (as opposed to “passive” solicitation), “it appears to regulate based on the particular message conveyed.” Even if a court were to find that the ordinance is content neutral, “we believe it will still be subject to strict scrutiny” because “it requires government permission prior to engaging in speech.”

SMC 10.10.27 Regulation of Solicitation (Ordinance 34340)

Summary: Makes it a misdemeanor offense to solicit in specified places (including near ATM machines, public pay phones, bus stops, car washes, and gas pumps). It also prohibits solicitations “within any public right of way” without a special events permit. Prohibits solicitations “by coercion.”

CFJ critique: The sweeping restriction on non-permitted speech in a public right of way places “a prior restraint on all protected speech activities in which the message includes a request for immediate contributions” and is thus a prior restraint and de facto prohibition on spontaneous solicitation speech. The restrictions on solicitations in the vicinity of ATM machines, etc., “may be subject to challenge as an over broad restriction on protected speech” because the only speech prohibited is speech soliciting immediate contributions. It is thus subject to challenge as a content-based restriction on free speech.

SMC 10.10.28 Prohibiting Solicitations from Vehicles (Ordinance C34341)

Summary: Makes it a misdemeanor offense for any person “to knowingly conduct a solicitation directed to or intended to attract the attention of the occupant of any vehicle stopped or traveling” on an arterial street.

CFJ critique: Because the ordinance “would target someone holding up a sign asking for help” and not others holding signs with other messages or advertisements, the speech restriction is content-based and thus subject to constitutional challenge. “If adverse consequences to traffic safety occur when motorists pull up to the curb in response to people holding signs, then all such sign-holding should be banned, not just some.”

One response on “The Constitution, the Sidewalk, the Beggar, and the Open Guitar Case

  1. William Cruz

    I’m grateful for the Center for Justice’s participation in this, and Noise Ordinance Issues brought before the city, and disturbed that we are back revisiting the Noise Ordinance issue, yet again.

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