EXCUSE ME, SIR, CAN YOU SPARE SOME CERTIORARI? WHY DOWNTOWN “NO PANHANDLING” ZONES ARE CONSTITUTIONALLY SUSPECT

Noah J. Kores, Stetson University

Abstract

Panhandlers are becoming increasingly prevalent in urban areas across the United States. Many cities have taken action to regulate where, when, and how panhandling may be performed. One particular trend raises many First Amendment questions: downtown panhandling bans. As panhandling is a form of free speech, the question is whether downtown bans go too far.

Under the First Amendment, many downtown bans fail both intermediate and strict scrutiny. Specifically, St. Petersburg, Florida’s ordinance fails because it places content-based restrictions on speech -- meaning it restricts speech based on what an individual is attempting to say. Panhandling bans are content-based because they restrict the poor from requesting monetary donations, but do not restrict them from other speech. Such bans are usually only justified by economic vitality. Economic vitality is a significant government interest, not a compelling interest, which is required for content-based laws.

On the other hand, such laws could be justified under the secondary effects doctrine. Under this doctrine, a content-based ordinance may be justified by a significant government interest where it addresses a regulable evil, and the secondary effects are justified by substantial evidence. In this regard, panhandling bans could be justified because panhandling may be blight to downtown centers.

This area of local regulation has a disparate application to the poor. Thus this constitutionally suspect restriction on speech is especially important.