Earlier this week Eastern District of Louisiana Court Judge Lance Africk sided with the American Civil Liberties Union challenge to the law. It requires those wishing to engage in begging to obtain a temporary, free license good for 72 hours, during which time the city can perform a background check on the applicant, and unless certain information comes to light such as a felony conviction in the prior two decades, the city must award the permit that includes an identification badge of the individual worn during expression in public.
Africk’s ruling argued that the ordinance would not be content-neutral since it treated begging differentially than other forms of expression, and that Slidell could not hurdle the high burden of proof necessary to justify its regulation. In particular, he noted that similar forms of speech the city regulated for interests of public safety, peddling and solicitation, had less onerous registration requirements, and even an exception to any registration for the latter if it involved political and religious views. Thus, given the number of complaints about and declining number of arrests for panhandling over the past couple of years, Africk asserts this does not present compelling enough evidence that the Slidell approach addresses a public safety problem.
This logic suggests that a change in procedures can bring the ordinance into closer alignment with constitutionality. For example, the law does not allow for obtaining a temporary permit during weekends, effectively banning the activity during those times, which the single-episode process to certify oneself for peddling or solicitation avoids. A change to open up registration in that period could solve for this. Also, the disqualification period for felony commission for peddling and solicitation licensure is just five years rather than 20 for panhandling; these can be brought into line with each other.
The exception for proselytizing or campaigning for elective office or ballot proposition also can be justified by observing how these activities differ from begging. These exempted activities typically involve going door-to-door, but even if performed stationary by the side of a road – such as people waving signs for a favored candidate – an ordinance could regulate this practice when encamped solely in a public space for the same reason applied to begging, public safety considerations; a person waving a sign for a candidate just as easily could interfere with traffic flow as one with one asking for handouts, and asking for registration would make miscreants easier to identify and discourage dangerous behavior.
While the alterations can reduce Slidell's burden of proof, the ruling also contains a significant error in argumentation that contributes. Africk’s approach that defines the threat by its potential incidence misunderstands that even a single incident can harm public safety in an unacceptable way. For example, had Dayton, OH had Slidell’s ordinance, criminal activity that occurred from two incidents of free speech regarding begging unlikely would have devolved into assault. Or if Greenville, SC had it, police might be able to identify a panhandler who recently assaulted someone. The standard of judgment Africk uses for defining the scope of a problem inappropriately burdens government in its ability to regulate speech to protect the health and safety of the public.
Understanding this then moots Africk’s contention that less restrictive means, such as redeployment of police resources and technology, can solve the public safety problem. Even though cameras caught the image of the assaulter in Greenville, police cannot identify him whereas an identification badge with his image on file could lead to a quick arrest or may have deterred the attack altogether. This also seriously dents his contention of the law as overbroad because it applies to public areas of Slidell and an assault related to panhandling could occur anywhere. However, Slidell could apply it only to certain high-trafficked areas to make this less of a court’s judgment call.
By tweaking the ordinance and calling attention to the substantial flaw in Africk’s argument, Slidell can win on appeal. A number of jurisdictions have lawful panhandling statutes, even as a couple of years ago jurisprudence on the issue changed dramatically to require much more narrowly tailored laws in avoiding constitutional invalidation, and the city also can draw upon those experiences to assist in this matter. An appeal is worth pursuing.