A. Uncertainty and Development of the Law.

The case of the state fair "booth rules" illustrates the latter point. State fairs around the country adopted rules restricting solicitation to rented booths. New York's rule was upheld as constitutional by the federal district court,⁽¹⁾ but struck down by the federal court of appeals.⁽²⁾ The Supreme Court declined to intervene in that case,⁽³⁾ but it later upheld substantially the same regulation in another case from Minnesota.⁽⁴⁾ Thus, the New York State Fair lost its case, even though its regulation had been perfectly proper the entire time.

The best we can do, then, is to analyze the existing cases and suggest ordinances that we believe to be constitutional. A municipality which considers panhandling to be a problem and wishes to deal with it must do so with the certainty that the ordinance will be challenged and the possibility it will be struck down. Only by taking these risks can we develop the case law to settle the constitutional questions.
 

B. "Vagrancy" and Its Problems.

Crimes are generally defined as a bad act combined with a bad intent.⁽⁶⁾ Vagrancy, however, was different. In the reign of Henry VIII, Parliament made it a crime to "be vagrant."⁽⁷⁾ In 1824, Parliament provided for the punishment of "idle and disorderly persons."⁽⁸⁾ Begging was not directly prohibited as an unlawful act, but instead was the means for determining that one would be "deemed an idle and disorderly person."⁽⁹⁾ These acts were widely copied and expanded in the United States.

These acts were far out of the mainstream of criminal law and obviously directed at politically powerless groups. It was hardly surprising that they incurred the wrath of the courts in the criminal law revolution of the 1960's and 1970's. In the case of In re Newbern,⁽¹⁰⁾ the California Supreme Court held that a law defining vagrancy as being a "common drunk" was too vague to be enforced. The United States Supreme Court struck down a statute making it a crime to be a drug addict, rather than prohibiting using or possessing drugs, in Robinson v. California.⁽¹¹⁾ In Cox v. Louisiana⁽¹²⁾ and Shuttlesworth v. Birmingham,⁽¹³⁾ the high court struck down laws that gave police excessive discretion as to who would be allowed to demonstrate and who would be required to move on. Finally, in Papachristou v. Jacksonville,⁽¹⁴⁾ the high court struck down a vagrancy law so sweepingly broad that, by its literal terms, a person out for a leisurely, aimless stroll could be classified as a "vagrant."

From these cases and others, an attitude has developed among many lawyers that public order laws in general are prohibited, or at least suspect. That is not true. In the absence of an impact on a specific constitutional right, discussed in the next section, the police power of the state remains available to define and punish the acts which the legislative body deems harmful to the public welfare. In the Newbern case cited above, for example, Newbern was remanded for trial for being drunk in public, a violation of a city ordinance which was not vague and which punished an act rather than a status.

The problems of the old vagrancy laws are readily avoided. Punish acts, not status. Define the act clearly enough that people need not guess whether a particular act is legal. Do not give the police authority to arrest disfavored people for acts which others do all the time. In the wake of the Newbern case, California replaced its "vagrancy" statute with a "disorderly conduct" statute,⁽¹⁵⁾ which largely fixes these problems.

In the case of panhandling, which is the specific focus of this booklet, a more difficult question arises. Panhandling typically involves a spoken request, and the issue of freedom of speech therefore enters the picture.
 

C. Panhandling and Free Speech.

1. Public forums and other public property.

For the purpose of invoking this rule, property is either a "traditional public forum," a "designated public forum," or a "nonpublic forum."⁽¹⁹⁾ The traditional public forums are primarily streets, sidewalks, and parks, where people who wish to express their views have done so since time immemorial. A designated public forum is one which the government has chosen to make available to the public. A nonpublic forum is one which government chooses to use only for its own communications or which is not used for communication at all.

The law is now reasonably clear that governments have broad authority to restrict or prohibit solicitation on their nonpublic forum property. In United States v. Kokinda,⁽²⁰⁾ the Supreme Court upheld a Postal Service regulation⁽²¹⁾ prohibiting solicitation on post office grounds. However, the Court was divided as to the reason for the regulation's validity. The plurality opinion held that the post office grounds were not a public forum, while Justice Kennedy believed that the restriction was valid even if the grounds were a public forum.

International Society for Krishna Consciousness, Inc. v. Lee⁽²²⁾ is the Supreme Court's latest word on solicitation. A majority held that the New York area airports are not public forums and that a ban on "the solicitation and receipt of funds" is constitutional. Justice Kennedy reasserted his position from Kokinda that a prohibition on in-person solicitation for the immediate payment of money may be valid even in a public forum.

Krishna seems to give a green light to banning solicitation in transportation facilities. If JFK Airport is not a public forum, it is difficult to imagine what public transportation facility is. The airport was open to the public without restriction, and it had broad thoroughfares lined with stores, much like a city street.⁽²³⁾ Cities should be aware, however, that the Port Authority prevailed on the public forum question only by the narrowest of margins. A city which wishes to keep its transportation facilities out of the "public forum" category should limit nontransportation activities in them to the absolute minimum.

There seems to be some confusion as to whether solicitations by organized charities can or must be permitted by a governmental authority which wishes to ban panhandling. Language in the Schaumburg case⁽²⁴⁾ has led some people to believe that charitable solicitation has a special place and must be permitted. The New York subway regulation, for example, initially banned all solicitation but was amended to permit organized charities to solicit.⁽²⁵⁾

Although New York did prevail in the subway case, we believe that the safer course is to prohibit all in-person solicitation for the immediate payment of money in transportation facilities. One of the three judges dissented in that case, saying that "[h]ad the TA's regulations continued to bar all charitable solicitations in the subways, I would vote to uphold them . . . ."⁽²⁶⁾ In the state fair case, the Supreme Court placed considerable emphasis on the fact that the prohibition applied equally to all would-be solicitors.⁽²⁷⁾ The post office and airport cases also involved total bans. In light of the Supreme Court's recent move away from categories of speech and toward a critical examination of discrimination against disfavored viewpoints,⁽²⁸⁾ we consider an exemption for organized charities to be risky.
 

2. Time, place, and manner restrictions.

The first part of the test means that the regulation must not be a means for suppressing a particular point of view.⁽³⁰⁾ "The principal inquiry . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys."⁽³¹⁾

A restriction on panhandling should have little difficulty passing this part of the test. The state fair case established that an evenhanded restriction on all would-be solicitors is "content neutral" for this purpose.⁽³²⁾ Advocates of unrestricted panhandling often contend that panhandlers convey a message about social conditions.⁽³³⁾ Whether that is true or not, it cannot be credibly contended that suppression of that message is the reason cities seek to regulate panhandling.⁽³⁴⁾

The second part requires a significant state interest and tailoring of the regulation to serve that interest. This will likely be the most hotly debated point. Advocates of unrestricted panhandling frequently assert that removing unsightly homeless people from view is the object of the regulation.⁽³⁵⁾ That is, of course, not the purpose. The purpose is to permit people to use streets, sidewalks, and public transportation free from the borderline robbery and pervasive fraud which characterize so much of today's panhandling. Regulations should be tailored to this purpose and not sweep more broadly than is necessary.

In implementing this test, the Supreme Court has given substantial deference to the government's determination of what is necessary. "Narrowly tailored" is not the same thing as "least restrictive means."⁽³⁶⁾ A regulation is not invalid simply because the challenger or the judge can conceive of a narrower regulation which arguably may accomplish the same end. It is sufficient that the "regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."⁽³⁷⁾

The last requirement is that the regulation leave open alternate channels of communication. Prohibition of aggressive or fraudulent panhandling easily meets this test, as does prohibition of panhandling in limited places, such as transportation facilities. A complete ban on panhandling in a city would present a close question. To the extent that panhandling communicates a message about the adequacy of social services, there are certainly more than ample alternative ways to express that message. The fact that the alternatives may be less dramatic does not render the regulation invalid.⁽³⁸⁾
 

3. Expressive conduct.

In United States v. O'Brien,⁽⁴⁰⁾ the draft-card burning case, the Supreme Court established a four-part test for regulations of expressive conduct:

"[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."⁽⁴¹⁾

Although phrased somewhat differently, this test is practically the same as the time, place, and manner test. Nearly all regulations will pass both tests or neither.⁽⁴²⁾
 

4. Commercial speech.

Commercial speech which is unlawful or misleading can be banned outright.⁽⁴⁶⁾ There is no First Amendment problem with criminalizing false or misleading representations by panhandlers. Indeed, such conduct constitutes the well-established crime of theft by false pretenses.⁽⁴⁷⁾

Other commercial speech may be limited so long as the government has a substantial interest which is directly advanced by the regulation, and the regulation is no broader than necessary. This test differs from the time, place, or manner and expressive conduct tests in that the regulation may go directly to the content of the speech.
 
 

D. Outright prohibition of panhandling.

Two positions might be taken to support such a ban. First, the federal court of appeals in the New York subway case suggested that panhandling is conduct rather than speech and therefore not within the First Amendment's protection.⁽⁵⁰⁾ Also, if panhandling is commercial speech,⁽⁵¹⁾ a complete ban may be upheld if it sweeps no more broadly than necessary to serve a substantial governmental interest, with the term "necessary" being loosely applied.⁽⁵²⁾

If the first approach is finally accepted by the courts, a complete ban will be upheld. However, we consider the "commercial speech" variant to be more likely to prevail. For a complete ban to be upheld, it would be necessary to show that lesser restrictions are inadequate. At the present time, it is doubtful whether such a showing can be made. We therefore recommend that cities first try the lesser restrictions described in part III of this booklet. If they prove inadequate, that proof will support the case for a complete ban.