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Va. County's Panhandling Ordinance Is Unconstitutional, 4th Cir. Says

By Mark Wilson, Esq. on March 06, 2015 | Last updated on March 21, 2019

A few years ago, the Ninth Circuit ruled against the City of Redondo Beach in a dispute over a city ordinance prohibiting standing in the street to solicit anything in exchange for money. The ordinance was really directed toward day laborers; Redondo Beach wanted a way to stop them from soliciting work on certain streets and tried to use a safety ordinance to do it.

Now, from the Fourth Circuit, comes a similar statute prohibiting "standing" in a county roadway to solicit funds or sell merchandise. The plaintiff in Reynolds v. Middleton is, it turns out, a homeless man who solicits donations from stopped cars. A federal district court had granted summary judgment for Henrico County, Virginia, but last week, the Fourth Circuit reversed.

Panhandling Is Protected Speech in the 4th Circuit

Robert Reynolds, the homeless solicitor in question, sued the city on First Amendment grounds. Notably, the court recognized that "[t]here is no question that panhandling and solicitation of charitable contributions are protected speech" and that "public streets and medians qualify as 'traditional public forum[s].'"

This assertion -- that soliciting donations is protected speech -- hasn't met universal agreement. The Seventh Circuit said last September that an immediate request for money "does not express an idea or message about politics, the arts, or any other topic on which the government may seek to throttle expression in order to protect itself or a favored set of speakers"; in other words, it wasn't speech as such.

Yes, Evidence Is Required

Finding the existence of protected activity is just part one of a two-part analysis. The next question is whether the city's actions were constitutional.

Content-neutral time, place, and manner restrictions are permissible even in traditional public forums, as long as they meet the intermediate test of being "narrowly tailored to serve a significant government interest" and leave open alternative channels of communication.

On this question, the county claimed that it didn't have to present evidence of a significant government interest, and could instead "rely on common sense and logic." However, the Fourth Circuit, relying on the Massachusetts abortion clinic case, McCullen v. Coakley, said that the existence of a significant interest could be derived from case law, but proving that interest in an individual case required "the government to present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary."

While the court accepted that protecting drivers and solicitors from being injured was indeed a significant government interest, the county failed when it came to proving that it "has other, less restrictive means available to further its asserted interest," including enforcing existing traffic laws that don't burden speech. "The Amended Ordinance prohibits all forms of leafletting, which is one of the most important forms of political speech," the court said, in addition to "soliciting any kind of contribution, whether political or charitable, or selling or attempting to sell goods or services."

And, notably, "the County simply presented no evidence showing that it ever tried to use the available alternatives to address its safety concerns." Perhaps because it wasn't really worried about safety; it was worried about the panhandlers that drivers didn't want to see.

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