Slidell ordinance promises to shape free speech law
The actions of Slidell may end up shaping First Amendment jurisprudence, as result of an ordinance it enacted requiring licensing for panhandling.
Interpretation regarding this area of law went topsy-turvy last year in the case of Reed v. Town of Gilbert, which did not even involve panhandling. But the constitutional standard made in that case, dealing with signage, quickly became applied to a host of municipal ordinances that had prohibited various permutations of panhandling. In essence, almost all instances of panhandling acquired automatic non-neutrality in speech content, meaning that almost all regulation of it unjustifiably restricted freedom of speech.
A wide swath of challenged laws, often by a chapter of the American Civil Liberties Union, fell as a result. In response, Slidell abandoned its own ordinances restricting the prevalence and venue of the practice and instead turned to licensing, an approach that then had no challenge in the few places with something similar. The ordinance requires that 48 hours prior to commencing of begging that prospective solicitors obtain a free annual license that aims to provide some kind of positive identification of the holder. Information gathered for that purpose the city may use to conduct background checks.
Slidell argues the regulation allows for protecting the health and safety of both beggars and the public. This identifies the measure as a conduct-based regulation, for which the courts continue to grant municipalities in the post-Reed environment. Regardless, with plans of enforcement of the law announced, the Louisiana ACLU launched a suit.
The state chapter asserted the law’s basis rested upon the content-based standard used as the rationale in Reed. Further, it alleges that the ordinance places too many restrictions on free speech because the law allegedly remains unjustified by a substantial state interest, is not narrowly tailored, and does not leave ample alternative forums for expression, even if found not content-based but content-neutral.
That latter complaint signals some concern that a court will find the ordinance addresses conduct in a speech content-neutral way. Even as Reed has broad application, a number of cases in the 18 months since that decision have found specific ways to restrict restrictions of speech not based on content, so the ACLU realizes the thin ice here.
Even so, Slidell can prove that claim meritless. Pointing out the additional safety brought to panhandlers and the public would demonstrate a substantial state interest, that the licensing would accomplish that safety, and that the process creates no significant impediment to expression would beat this argument.
Despite that, the ACLU pressed on, explained by the fact it runs both on greed and ideology. Never forget that the ACLU is concerned less with constitutional rectitude than with making a buck and pushing an agenda. In these kinds of cases – a recent one racked up bills of $2 million – it can squeeze reimbursement from the losing party, so this encourages it to intervene so it may offer continued employment of its staff. And it wants to keep gathering taxpayer dollars to subsidize its leftist agenda – in this instance through facilitating the presence and visibility of panhandling, which then gets turned around as an indictment of an economic system reputedly unfair and supposed lack of government redistribution that reportedly would rectify the assumed malady.
Hopefully, Slidell will not buckle but will see this through. Extant jurisprudence suggests that this kind of law, or something pretty close to it, will stand up. If so, it will improve the city’s quality of life, provide potential assistance to beggars, and stamp into being law that would find itself replicated throughout the country.
Posted by Jeff Sadow at 12:10