Supporting the unpopular because it’s [a] right.

On Tuesday, May 23rd, the township council is set to pass ordinance 13-2017  (“An Ordinance Regulating Roadway Solicitation by Charitable Organizations”) on second reading.  On its face, it’s a minor ordinance that probably wouldn’t ruffle anyone’s feathers, let alone raise alarm.  But it’s likely an unconstitutional violation of the First Amendment and this should not be permitted to pass without inspection.

The issue begins with the state of New Jersey’s statutory ban on solicitation for money in roadways.  The statute has an exemption for towns to permit charitable organizations to collect funds in roadways, if they so desire to enable the exemption.

You can find the State statute (NJSA 39:4-60), here. It says, in relevant part:

“A municipal governing body by ordinance may authorize charitable organizationsto solicit contributions in the roadway of a highway, other than interstate highways or toll roads…, subject to regulations promulgated pursuant to the “Administrative Procedure Act,”…, by the Department of Transportation in consultation with the Division of Highway Traffic Safety.” (emphasis added)

Ordinance 23-2017 is the enabling legislation permitting charitable organizations (e.g. TVAC 1), to request funds via panhandling in roadways.

Whether you appreciate it or not, panhandling is a form of expressive communication. To limit the ability of those without means to ask for help is unduly harsh and inimical to notions of freedom of speech and association.

Limiting a type of expressive communication to selected groups is a subject based discrimination, which is presumptively unconstitutional.  When government puts its finger on the scale as to which kinds of speech are acceptable in a public forum, we are circumscribing First Amendment rights, as well as setting a precedent for future situations.  If group x can be excluded from a right here, it makes it that much easier to deny group y later on.  Once weakened, rights are far easier to relegate to lesser status.  As the First Amendment is critical to an open and robust debate, I therefore stand against any and all efforts to create unconstitutional ordinances here in my home township.

The view that panhandling is expressive communication is not new.  Prior to Reed, v Town of Gilbert, the Second Circuit Court of Appeals said in Loper v. New York City Police Dep’t 2:

“We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not a significant one for First Amendment purposes.”

The Fourth, Sixth, Seventh, Ninth and Eleventh circuit courts of appeals have explicitly adopted the rationale laid out in Loper that the First Amendment protection for panhandling .  While not dispositive, the US Supreme Court heavily implied that it sees panhandling as expressive speech, protected by the First Amendment, when they remanded Thayer v. City of Worcester to be decided in accordance with Reed v. Town of Gilbert:

The motion of Homeless Empowerment Project for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit for further consideration in light of Reed v. Town of Gilbert, 576 U. S. ___ (2015).

As Reed dealt with speech rather than conduct, it’s clear that panhandling is being treated as protected speech.

After Reed v. Town of Gilbert was decided, three circuits and additional lower courts have held these types of panhandling ordinances to be unconstitutional. Some of these lawsuits have been very costly for towns implementing them.

A string of lawsuits have recently been resolved, specifically on the pan-handling issue and whether or not limits on who may receive a permit are content-based restrictions (which generally doom the ordinance on First Amendment grounds). See e.g. the First Circuit case of Thayer v. City of Worcester and Seventh Circuit case of Norton v. City of Springfield (both decisions are linked below).

In the First Circuit case which sought to curb aggressive pan-handling, the Court initially found for the City of Worcester. Then, following Reed, the US Supreme Court vacated the opinion and remanded for reconsideration in light of Reed.

The Judge subsequently found for Plaintiffs and the City agreed to stop any enforcement of the ordinance. The plaintiff was awarded attorneys fees totaling close to $600,000.

In footnote 2 of November 9, 2015 memorandum of decision and order the judge stated: Simply put, Reed mandates a finding that Ordinance 9-16 is content-based because it targets anyone seeking to engage in a specific type of speech, i.e., solicitation of donations.

In a Seventh Circuit case, the court also decided in favor of the town prior to the Reed decision. After Reed, the case was re-heard and decided against the town, reversing the prior opinion, in light of Reed.

According to an order entered by Judge Richard Mills on March 28, 2017: “Pursuant to the Stipulation, the Plaintiffs are deemed the prevailing party for the purpose of determining the amount of reasonable attorney’s fees for which Defendant City of Springfield shall be liable, if any.”  The plaintiffs have until next week to file their request for attorneys fees, but it will likely be as substantial as the Massachusetts litigation.

Other courts are reaching this conclusion as well. See e.g. Browne v. City of Grand Junction3,  (D. Colo. 2015) (observing that any law prohibiting all solicitation speech in a public forum constitutes content-based discrimination under Reed); McLaughlin v. City of Lowell4, (D. Mass. 2015) (“It appears at this point clear that regulations of solicitation which single out the solicitation of the immediate transfer of funds for charitable purposes are content-based.”).  In Middlesex County, NJ, a decision by Judge Frank Ciuffana created a preliminary injunction against enforcement of the two anti-panhandling ordinances and the municipality agreed to repeal and revise the challenged ordinances, in addition to paying attorneys fees to the Plaintiff as part of the settlement.

In a similar ordinance to ours, the City of Akron, OH was sued by the ACLU. Their brief can be found here.  It begins, “[t]he City of Akron is enforcing a content-based anti-panhandling ordinance that singles out one type of speech—requests for charitable donations—for special restrictions that do not exist for other types of speech.”

The council then repealed the ordinance following the suit.

If we want to open roadways to solicitation by non-profit groups, the First Amendment requires that we do not limit the ability to solicit by other groups.  The Council should also request an Advisory Opinion from the State Attorney General regarding the Constitutionality of 39:4-60 post Reed.  Conduct based restrictions, generally applicable to all, will still be available to deal with abuses and public order, issues of safety and aggressive panhandling.

I hope that the council will reconsider this action.

1  The ordinance defines charitable purposes as follows: ” (1) any purpose described in section 501(c) (3), of the Internal Revenue Code of 1986, 26 U.S.C. s.501(c) (3); or (2) any benevolent, philanthropic, humane, social welfare, public health, or other eleemosynary objective, or an objective that benefits law enforcement personnel, firefighters, or other persons who protect the public safety.”
2 Loper v. New York City Police Dep’t, 999 F.2d 699 (1993), citing Vill. of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980)
3 Browne v. City of Grand Junction, 136 F. Supp. 3d 1276, 1289–90 (D. Colo. 2015)
4  McLaughlin v. City of Lowell4, 140 F. Supp. 3d 177, 185–86, 185 n.3 (D. Mass. 2015)