October 8, 2012

Last month, the Madison City Council voted to ban anyone from asking for donations of money or goods in large parts of the city, including all of the Central Business District. Although an ordinance barring “aggressive panhandling” has been on the books for some time, city officials claimed that stopping panhandlers – and many others – from asking for money is needed to create a more “pleasant” experience for Madison residents and visitors.

The ordinance the city passed applies not only to downtown Madison, but also bars anyone from seeking donations within 25 feet of all intersections in the city, as well as near ATMs and alcohol-licensed establishments. The American Civil Liberties Union of Wisconsin objects to the law because prohibiting individuals for peacefully seeking donations is unconstitutional.

In a letter sent last week to Madison Mayor Paul Soglin and the Madison City Alders, ACLU of Wisconsin Race, Poverty and Civil Liberties Attorney Karyn Rotker outlined why the panhandling ban runs afoul of First Amendment protections for free speech. The letter also told city officials that if the ordinance wasn’t repealed, the ACLU of Wisconsin would consider all legal options to challenge the law.

The ACLU of Wisconsin strongly urges reconsideration of the panhandling ban the City of Madison passed on Sept. 18, 2012. We object to the city’s decision to penalize non-aggressive efforts to “procure a handout” (“panhandle”) – as well as charitable solicitation efforts – in most of downtown and substantial portions of the rest of the city. In particular, we object to the flat ban on all forms of panhandling in the “Central Business District” and the citywide ban on panhandling within 25 feet of all intersections.

The U.S. Supreme Court has consistently held that simply because the public is uncomfortable with someone’s message (in this case, impoverished people asking for money), the government cannot criminalize that person’s speech. The right to beg – and to solicit other kinds of donations – is protected by the First Amendment.

A 1980 Supreme Court decision recognized that “charitable appeals for funds, on the street or door to door, involve a variety of speech interests – communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes – that are within the protection of the First Amendment.” And lower courts have ruled that there is no meaningful distinction between organizations asking for financial assistance and people panhandling for personal financial assistance.

When proponents of the law say that panhandling is an inconvenience or annoyance to State Street shoppers or that panhandlers buy and publically consume alcohol, is isn’t a strong enough argument for our government to justify prohibiting certain kinds of speech. That’s particularly true in the areas that traditionally have the greatest First Amendment protections: public sidewalks and parks.

Beyond prohibiting indigent persons from asking for money, the ordinance would also effectively stop charitable organizations for asking for donations because no one is allowed to ask for donations in these new “solicitation free” zones, including Salvation Army bell ringers or environmental organizations seeking donors.

It all comes down to a basic free speech test. If the government must assess whether or not someone is asking for money, the police who are enforcing this ordinance have to listen to the content of someone’s speech to decide: is she asking for money or not?  The Council may have thought that barring all solicitations for money would get them out of constitutional problems. But the ordinance still doesn’t pass the test. It is still one category of speech – a verbal request for money – that is being singled out for punishment.

The City of Madison needs to repeal its effort to suppress panhandlers’ speech on State Street and Capitol concourse area, and near every intersection in the City. The attempt to reduce people’s discomfort caused by panhandlers (or other charitable solicitations) does not justify suppressing peaceful speech. A ban on aggressive or threatening panhandling, as well as ordinances against public intoxication or harassment, already exist and could be enforced. 

Panhandling bans have been successfully challenged in the courts across the country. The City of Madison would be wise to repeal the ordinance passed last month and focus its energy on responding to criminal or threatening behavior, not the peaceful exercise of First Amendment rights. 

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